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3YU,    Monroe  County. 

JOSEPH  ^riCIIAELS,  ^rOKLEY  A.  STERN  ct  aJ., 

Plaintiffs  J 
against 

SIDNEY  HILLMAN,  individually  and  as  Presi- 
dent of  theJAmalgamated  Clothiii£_\A^rIvers 
^  America, \et  atr, 

Defendants. 


MEMORANDUM  OF  LAW. 


O'BRIEN  w<;:  POWEIX, 

Attorneys  for  Defendants. 

Felix  Fkankfcrter, 
Emory  \\.  Bucknbr, 
(Jerard  C.  Henderson, 

llOBERT   SZOLD, 

Max  Lowenthal, 

of  Connael. 


The  Hecia  Press,  57  Warnn  «t.,  N.  Y.     Tel.  Harclay  62S0. 


^iiLvARY  CF  ECONOMIC   x  fiH 

117  LIBRARY 


TABLE  OF  CONTENTS. 

PAGE 

PRELmiNAUY   AXAIASIS    1 

Part  Fikst:    The  purpose  of  ('iifoi'cin<>-  follec- 

tivc  Itaiiiuiiiiiijn'  is  not  illei^al 4 

A.  The  leadino-  New  York  ca.ses 5 

B.  The  Uiiiteil  States  Siiprenie  Court  in 

tlie   Hitcliman   ease 23 

(\  The  princiides  established  in  the  New 

York  cases 31 

1).  Conclusion   37 

Paut  Slx'OND  :  Sc()i)e  and  adiiiissiltility  of  evi- 
dence    38 

A.  The  jdeadinjis  and  the  preliminaiy  in- 
junction    38 

T>.  The  issues  raised  in  the  pleadings. ...  40 

( \  What  facts  are  relevant  to  these  issues  42 

T).  AdniissiUility  of  such  evidence 4.") 

K.    ^fethods  of  ]HOof 51 

I'Airi"  Tiiiuk:  Lawfulness  (tf  jiarticulai-  uieans.  (>2 

Strikes   (>2 

Persuasion  oi*  eiidceuieut f>3> 

Iiiduciiiii  hreach  of  contract Gl^> 

Physical  force  and  violence 70 

Threats.  uuMiac<'s  and   intimidation 70 

TMcketinu    81 

Coercion    84 

Boycotts   , 80 

Ajijjeals  to  the  pulilic 00 


TABLE  or  CASES  CITED. 

PAGE 

Adair  v.  United  Slalca,  20iy  U.  S.,  161 25 

Aldridge  V.  Stuyvesaut.  1  iiall  (N.  Y.),  210 -('J 

American  Malting  Co.  v.  Keitel,  209  Fed.,  351 73 

Angle  V.  Chicago  etc.  Ry.,  151  U.  S.,  1 72 

Ashley  v.  Dixon,  48  N.  Y.,  430 69,  70,  71 

Auhurn  Draying  Co.  v.  VVardell,  178  App.  Div.,  270.  .   20 

Auburn  Draving  Co.  v.  VVardell,  227  N.  Y.,  1 

19,  32,  36,  88,  92 

P.adger  v.  Badger.  88  N.  Y.,  546 52 

Hailcy  v.  Alabama,  219  U.  S.,  219 68 

Barnes  v.  Chicago  Typo.  Union,  232  111.,  402 81 

Barron  v.  Collins,  49  Ga.,  581 68 

Beck  V.  Railway  Teamsters  Union,  113  Mich.,  497. .  .    81 

Benton  v.   Pratt,  2  Wend.,  385 73 

Bitterman  v.  Louisville  &  Nashville  R.  R.,  207  U.  S., 

205    V4 

Board   of  Trade   of   Chicago  v.    United   States,   246 

U.  S.,  231 50 

Bouslier  v.  McCauley,  91   Ky.,  135 73 

Bossert  v.  Dhuy,  166  App.  Div.,  251 18 

Bossert  v.  Dhuy,  221  N.  Y.,  342. .  15,  30,  41,  85,  87,  88,  91 
Bossert   v.    United    Brotherhood    of    Carpenters,    77 

Misc.,  592    Ki 

Boston  &  Worcester    R.    Corp.   v.    Dana,   67    Mass., 

83    53,56 

Bowen  v.  Hall,  6  Q.  B.  D.,  333 73,  71 

Boyson  v.  'I  hum,  98  Cal.,  578 7') 

Brennan  v.  United  Hatters,  73  N.  J.  L.,  :29 2!) 

Bucks  Stove  &  Range  Co.  v.  Am.  Fed.  of  Labor.  21  !> 

U.  S.,  581 !»(> 

Burns  v.  Bricklayers'  Union,  14  N.  Y.  Supp.,  3(;i 2:* 

Burton  v.  Driggs,  20  \\'all.,  125 5(i 

Caughey  v.  Smith,  47  N.  Y.,  244 6.'. 

Chaffee  &  Co.  v.  United  States,  18  Wall.,  5I(; 5'.( 

Citizens  Light  etc.  Co.  v.  Montgomery  etc.  Co.,   171 
Fed.,  553  ! ' 75 


11 


PAGE 

Cliquot's  Champagne,  3  Wall.,  114 59,  61 

Coppage  V.  Kansas,  236  U.  S.,  1 25 

Curran  v.  Galen,  152  N.  Y.,  33 5.  9, 10,  30 

Daly  V.  Cornwell,  34  App.  Div.,  27 TO 

Daniel  v.  Swearengen,  6  S.  C,  29T 68 

De  Jong  V.  Behnnan  Co.,  148  App.  Div.,  3:  ;  131  X.  Y. 

■      "  Supp..    1 083    rO,  71 

Dorenius  v.   Hennessy,  1T6  111..  608 73 

Dougherty  v.  Milliken.  163  N.  Y.,  527 53 

Eggler  V.  People,  56  N.  Y.,  (J4.? 60 

Foster  v.  Retail  Clerks'  Protective  Assn.,  39  Misc., 
48 82,91 

Fuerst  v.  Musical  Mutual  Protective  Union,  95  N.  Y. 
Supp.,  155   29 

Gill  Engraving  Co.  v.  Doerr,  214  Fed.,  HI 88 

(iompers  v.  Bucks  Stove  &  Range  Co.,  33  App.  Cas. 
(D.   C),   83;   33  App.   Cas.    ( D.   C).   516;   221 

U.  S.,  418. .  90 

Gore  V.  Condon,  87   Md.,  368 73 

Grimes  v.  State,  68  Ind.,  193 47 

Haight  V.  Badgeley,  15  Barb.,  499 .64 

Hamlin  v.  Sears,  82  N.  Y.,  327 60 

Haskins  v.  Royster,  170  X.  C,  601 68 

Heit  Kamper  v.  Hoffman,  99  Misc.,  543 91 

Herzog  v.  Fitzgerald,  74  App.  Div.,  110 79 

Hitchman  Coal  &  Coke  Company  v.  Mitchell,  172 
Fed..   963;   176   Fed.,   549;   202    Fed..   512;   245 

U.  S.,  229 5.  23.  41 .  66,  73 

Homan  v.  Hall  (Xeb.),  165  X.  W..  881.  .  .' 74 

Huxley  v.  Hays,  191   Fed.,  943 76 

Iron  ]\Iolders'  Union  v.  Allis-Chalmers  Co.,  1()6  Fed., 
45 ..77,84,  89 

Jacobs  V.  Cohen.  183  X.  Y..  207 9.  32,  85 

Jesse  L.  Lasky  Feature  Play  Co.  v.  Fox.  15  ^  X'.  Y. 

Supp.,    lo'e    ' ^70 

Johnston  Harvester  Co.  v.  Peter  Meinhardt.  60  How. 

Pr.,  168  ;  24  Hun,  489 65,  70 

Jonas  Glass  Co.  v.   Glass   Bottle   Blowers'  Assn.,   77 

X.  J.  Eq.,  219 29.  34 

Jones  V.  Maher,  62  Misc.,  388  ;  affd.  without  opinion 

141  App.  Div.,  919 ' 84 


Ill 


PAGE 

Kellogg  V.  Sowerby,  190  N.  Y.,  STO 47 

Kilpatrick   v.    Whitmer    &    Sons,    Incorporated,    118 

App.  Div.,  98 (JU 

Kissam  v.   United  States  Printing  Co.,   199   N.   Y., 

TG    12,  29,  32 

Knickerbocker  Co.  v.  Gardiner  Co.,  107  Md.,  556.  .73,  75 
Krebs  v.   Rosenstein,  31   Misc.,   GGl ;  affd.   5G  App. 

Div..  G19    ^9 

Lamb  v.  Cheney  &  Son,  227  N.  Y.,  418 71,  74 

Lawlor  v.  Loewe,  235  U.  S.,  522 52 

L.   D.   Willcutt   &  Sons  Co.   v.   Driscoll,   2(»0    Mass.. 

110    29 

Leitch  V.  Atlantic  Mutual   Insurance  Co.,  GG   N.   Y., 

100    GO 

Leonard  v.  Whetstone,  31:  Ind.,  383 74 

Lindsay  &  Co.   Ltd.  v.   Montana   Fed.  of   Labor,   3^ 

Mont.,  2G4;  note  in  18  L.  R.  A.,  70: 91 

Lumley  v.  Gye,  2  Ell.  &  Bl..  21G G4.  G5,  73 

Lush  V.  Druse,  4  Wend.,  313 59 

Lyon  V.  Mitchell,  3G  N.  Y.,  235 28 

Mahler  Co.  v.  Mahler.  IGO  App.  Div.,  548 70 

Marfield  v.  Goodhue.  3  N.  Y.,  62 28 

Martin  v.  McFall.  65  N.  J.  Eq.,  91 30,  87 

McCord  V.  Thompson  &  Starrett  Co.,  129  App.  Div., 

130;  attd.  without  opinion,  198  N.  Y.,  587 11 

Miele  v.  Rosenblatt,  1G4  App.  Div.,  604 58 

Mills  v.   United   States   Printing  Co..   99   App.    Div., 

605  ;  128  App.  Div.,  889  ;  199  N.  Y.,  76 

12,  13,  29,  30,  79,  83,  87 
Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.,  598.  72 
Motley  Green  &  Co.  v.  Detroit  etc.  Co.,  161  Fed.,  389.   73 

National  Protective  Association  v.  Cumming,  53  .\pp. 

Div.,  227  ;  170  N.  Y..  315 8.  29.  31.  32,  G2,  Nd,  s.-) 

New  Arcade  Co.  v.  Owens,  258  Fed..  965 59 

Newton  v.  Erick.son.  70  Misc..  291;    ill   .\pp.    Div.. 

939    15.  k; 

Norcross  v.  Utis,  152   I'a.,   isl 7(i 

O'Brien  v.  People,  2 1  li   111.,  3.')  1 85 

Paine  Lumber  Co.  v.  Xeal,  214  U.  S.,   15!i .Ki 

Park  &  Sons  Co.  v.   National  Druggists'  Assn.,   175 
N.    Y..    1 7(i.  80 


IV 


PAGE 

Parkinson    Co.    v.    Bldg.    Trades    Council,    15-1    Cal, 

581    91 

I'atterson  v.  United  States,  •>>>  p^^  _  099.  238  U.  S., 

635    47 

Peek  V.  Northern  Pac.  Ry.  Co.,  51  Mont.,  295 7^ 

People  V.  Barondess,  16  N.  Y.  Supp.,  436;  133  N.  Y.. 

649    35 

People  V.  Becker,  215  N.  Y..  126 46 

People  V.  Duffy,  212  N.  Y.,  57 46 

i'eople  V.  Faber,  199  N.  Y.,  256 5v 

People  V.  Kostka,  4  N.  Y.  Crim..  429 69 

I'eople  V.  McKane,  143  N.  Y..  455 46 

People  V.  Molineux,   168   N.  Y.,  264 46 

People  V.  Peckens,  153  N.  Y.,  576 46 

People  V.  Sclnveinler  Press.  214  N.  Y.,  395 43 

People  V.  Thau,  219  N.  Y..  39 46 

People  V.  Van  Tassel,  156  N.  Y.,  561 46 

People  V.  Williams,  189  N.  Y.,  131 43,  44 

People  ex  rel.  Woodbury,  67  Misc.,  481 56 

Pickett  V.  Walsh,  192  Mass..  572 30,  87 

Posner  Co.  v.  Jackson,  223  N.  Y.,  325 70,  74 

Plant  V.  Woods.  176  Mass.,  492 29 

Piatt  v.  Bonsall,  136  App.  Div.,  397 28 

Ouinn  V.  Leatham,  1901  A.  C,  495 73 

Reinke  v.  Sanitary  District.  260  III.  380 54 

Reynolds  v.  Everett,  67  Plun,  294;  144  N.  Y.,  189.  .29,  66 

Rice  V.  Manley,  66  N.  Y.,  82 78 

Rogers  v.  Evarts,  17  N.  Y.  Supp.,  264  (affd.  sub.  nom. 
Reynolds  v.   Everett,  67   Hun,  294;   144  N.  Y., 

189)    29,  66,  70,  81 

Ruddy  V.  United  Association,  79  N.  J.  L.,  467 29 

Schomwald  v.  Rogain,  32  Okla.,  223 73 

Sinsheimer  v.  United  Garment  Workers,  77  Hun,  215.  91 

Sisson  V.  Cleveland  &  Toledo  R.  Co.,  14  Mich.,  489.  60 

.Sleeper  v.  Baker,  22  N.  D.,  386 73 

Smith  &  Melton  v.  N.  C.  R.  R.  Co.,  68  N.  C,  107.  .  60 

Smith  v.  National  Benefit  Society,  123  N.  Y.,  85 52 

Smithies    v.     Nat.    Assn.    of    Operative    Plasterers 

(1909),  1  K.  B.,  310 75 

Sperry  &  Hutchinson  Co.  v.  Asch,  145  Fed.,  659.  ...  72 

Same  v.  Brady,  134  Fed.,  691 72 

Same  v.  Weber  &  Co.,  161  Fed.,  219 72 


PAGE 

Same  v.  Mechanics'  Clothing  Co.,  135  Fed.,  838 72 

Same  v.  Pomnier,  199  Fed.,  309;  208  Fed.,  804 75 

Same  v.  Temple,  137  Fed.,  992 72 

Standard  Oil  Co.  v.  United  States,  221  U.  S.,  1 46 

State  V.  Van  Pelt,  136  N.  C,  633 90 

Stuart  v.  Simpson,  1  Wend.,  376 64 

Sun  Printing  Co.  v.  Delaney,  48  App.  Div.,  623 79 

Swan  V.  Johnson,  151  N.  C,  93 73 

Sweeney  v.  Smith,  167  Fed.,  385 75 

Temperton  v.  Russell  (1893),  1  Q.  B.,  715 73 

rhacker  Coal  Co.  v.  Burke,  59  W.  Va.,  253 ;  53  S.  E., 

IGl    25,27 

Thomas  v.  Cincinnati  R.  R.  Co.,  62  Fed.,  803 73 

Towle  V.  Forney,  14  N.  Y.,  423 28 

Triangle  Film  Corp.  v.  Artcraft  Pictures  Corp.,  250 

Fed.,  981    41,  67 

Truax  v.  Raich,  239  U.  S.,  33 73 

Tuttle  V.  Buck,  107  Minn.,  145 35 

United  States  v.  Craig,  4  Wash.  C.  C,  729 47 

\'an  Doren  v.  Jelliffe,  1  Misc.,  354 60 

Van  Name  v.  Van  Name,  38  App.  Div.,  451 55 

Von  Sachs  v.  Kretz,  72  N.  Y.,  548 55 

Vegelahn  v.  Guntner,  167  Mass.,  92 49 

Walker  v.  Cronin.  107  Mass.,  555 74 

Whclan  v.  Lynch,  60  N.  Y.,  469 60 

Winans  v.  N.  Y.  Erie  R.  R.  Co.,  21  How.,  88 58 

Woodward  v.  Washburn,  3  Den.,  369 64 

Year  Book  Mich..  11  H.,  4  (a)  ;  fol.  23A,  pi.  46.  . .  .   63 
Year  Book  Mich.,  10  H..  6  (d)  ;  fol.  8B,  pi.  30 64 


^itprpm?  Oloitrt 


Monroe  County. 


JOSEPH  MICHAELS,  MORLEY  A.  STERN  ct  ah, 

Plaintiffs, 

against 

SIDNEY  HILLMAX,  individually  and  as  'Presi- 
dent of  the  Amalgamated  Clothing  Workers 
of  Ainorica,  ct  aJ., 

Defendants. 


MEMORANDUM  OF  1.KW, 


Preliminary  Analysis.  ' 

In  orih'i-  to  give  a  setting  to  tlie  legal  discnssion, 
ii  brief  jn-eliminary  analysis  (\i  alleged  facts  is 
ueeessaiy.  Ol"  course  we  ncc^d  not  add  that  it  is 
not  onr  ])nr|»()se  to  anticii)ate  or  forestall  in  this 
memoranduiii  niiy  facts  that  may  he  develojjod  on 
eithei*  side  at  the  liial.  'riic  |)iii-i)ose  of  the  pre- 
liiiiinary  statement  is  merely  to  tl^■(>^^■  liglil  on  the 
general  seojte  of  the  h^gal  (Hiestioiis  NNliich  are  likel_\ 
to  ai-ise  at  the  trial. 

The  ])i-iii(il)al  delciidaiits  are  national  and  local 
officers,  of  the  Amalgamated  Clothing  W'oikeis  of 
America,  a  national  union  of  workers  in  the  men's 
clothing  indnsti-y.  The  union  has  made  market 
agreements  for  ^^(ll•king  siandaids,  collective  liai- 
gaining  and  arbitration  with  the  great  bulk  oT  the 
men's  clothing  manufaetui-ei-s  in  (he  leadini:-  nien's 


clothing-  centers  of  the  United  !r?tates.  The  plain- 
tiff firm  is  a  large  men's  clothing  manufactnrer  of 
Eochester,  which  has  declined  to  enter  into  snch 
an  agreement  with  the  Amalgamated.  It  is,  with 
insig-niflcant  exceptions,  the  only  men's  clothing 
mannfactnrer  in  Rochester  which  has  refused  to 
join  the  general  agreement  between  the  Clothiers' 
Exchange  and  the  Amalgamated. 

The  gist  of  the  plaintiff's  case  appears  to  he  an 
alleged  conspiracy  of  the  representatives  of  this 
nationally  organized  union,  and  a  concerted  effort 
on  th«eir  part  to  induce  the  plaintiff  to  recognize 
and  deal  with  the  union  in  all  matters  affecting 
wages,  hours  of  labor  and  working  conditions.  In 
])ursuance  of  this  purpose,  the  representatiyes  of 
the  union  are  alleged  to  have  ( 1 )  calle<l  strikes  of 
their  own  members  in  the  plaintiff's  employ:  (2) 
l)ersuaded  others,  not  their  member-s,  to  strike: 
(3)  picketed  the  plaintiff's  premises;  (4)  by 
threats  of  strike  and  boycott  induced  contractors 
not  to  work  for  the  ])laintiffs,  in  violation  of  con- 
tracts; (5)  appealed  to  the  public  not  to  patronize 
the  plaintiffs;  (6)  endeavored  to  cause  the  viola- 
tion of  a  working  agreement  between  the  ]ilaintiffs 
and  a  rival  union;  (7)  committed  sundry  acts  of 
riolence,  fraud  and  defamation. 

The  defendants  will  endeavor  to  show,  as  a  ques- 
tion of  fact,  that  the  ultimate  objec-t  wliich  they 
were  thrcughout  pursuing,  the  moving  cause  of 
their  whole  course  of  conduct,  was  the  l>ettenuent 
of  the  economic  condition  of  their  members,  by 
maintaining  fair  wages  and  reasonable  hours,  and 
in  other  respects  improving  the'r  working  condi- 
tions, as  well  as  by  contril)uting  to  law  and  oi-der 
in  industry  and  directly  advancing  the  public  in- 
tei'est.  They  will  show  furthei-  that  the  enforce- 
ment of  collective  bargaining  in  the  plaintiff's  shop 
wa*?  a  strategic  objective,  wliicl!  it  was  necessary 


3 


to  attain  in  order  the  better  to  fulfill  this  ultimate 
object  of  ef'ouoniic  betterment,  an  objective  Avliicli 
was  necessary  not  only  because  it  woubl  brin.u 
about  immediate  ini]tr()vemeut  in  woikiu;.',  comii- 
tions,  but  because  it  was  an  indispensable  safe- 
li'uard  auainst  a  lowerinj]j  of  induslrial  standards  in 
the  future.  Tliey  will  furtlier  show  that  the  strikes, 
iucitcniciit  of  stiikcs.  pickctinu,  and  appeals  to  the 
laihlic  (in  so  far  as  they  did  not  involve  \iolence, 
fraud  or  defamaticn  and  similar  tactics,  which  the 
defendants  em])hatically  disavow),  were  tactical 
means  reasonably  adajjted  to  the  achievement  of 
the  strategic  objective  of  collective  barjiainin;Li. 

The  lejial  aspects  of  the  controversy  divide  them- 
selves naturally  into  two  larger  subjects  of  inves- 
tiiiation :  first,  was  the  stratejiic  ])urpose  of  the 
defendants,  /.  c,  the  enforcement  of  c(dlective  bai-- 
liaininu  and  arbitration  between  Michaels,  Stern  cV: 
('(.'iiipany  ainl  iIk^  Amalgamated,  a  lawful  oi-  an 
uidawful  i)urpose?  Second,  were  the  pai-ticular 
means  em})lov<^d  in  achievinii  this  ])urpose  lawful 
or  uida\\ful? 

The  princi])les  involved  in  this  case  have  been 
much  litiiiated  in  New  York,  an<l  np(m  most  ])oints 
at  issue  there  is  a  settle<l  body  of  law  in  the  de- 
cisions (if  (;ur  ap]iellate  courts.  Hence  counsel 
have  decMued  it  unwise  in  this  mennuanduni  to  lio 
fai-  afield  into  the  law  of  othei-  jniisdictions.  In 
the  couit  •;  of  otluM'  states  ovcyy  variety  of  conflict- 
inii'  d(!i-trine  may  lie  found.  fre(|uently  i-ethM-tinii' 
economic  views  of  judges,  dei-ived  peihaps  from 
l^ecnlial•  local  industrial  coiulitions.  which  woidd 
iK.t  lie  accepted  liy  ilie  (i.urls  of  New  York.  Anv 
attempt  to  r(s'oncile  or  dist  in<:uis]i  ilie  awt  luu-ities 
would  soon  piove  fiiiiijcss.  The  subject  is  one 
which  peculiarly  concerns  ilie  domestic  jiolicy  of 
the  State  of  New  York  a  policy  which  hei-  juiis- 
pi  udence   has   dexcioiied    iu    the  conise   of   the   last 


quarter  century  along  distinct  and  well-defined 
lines.  This  is  a  memorandum,  therefore,  upon  New 
York  Law.  The  law  of  other  jurisdictions  is  cited 
only  incidentally,  where  it  illustrates  the  argument 
or  sheds  light  upon  parts  of  the  field  which  the 
New  York  courts  have  not  yet  fully  explored. 

PART  FIRST. 

The  purpose  of  enforcing  collective 
bargaining  is  not  illegal. 

Collective  bargaining  is  a  method  of  industrial 
co-operation  widely  prevalent  in  the  United  States, 
by  which  wages,  hours  of  labor  and  conditions  of 
work  are  regulated  by  agreement  between  the  em- 
ployer, or  an  association  representing  a  number  of 
employers,  on  the  one  hand,  and  the  authorized  rep- 
resentatives of  an  association  of  emi>loyees  on  the 
other.  It  substitutes  for  the  purely  contractual 
relation  of  master  and  servant  an  industrial  rela- 
tion in  which  the  basic  laws  of  the  industry  are 
placed  beyond  the  influence  of  individual  agree- 
ment. It  presupposes  organization,  since  without 
organization  authorized  representatives  cannot  be 
elected,  nor  can  agreements  be  enforced.  It  cul- 
minates in  formal  trade  agreements,  which  not  only 
contain  specific  terms  as  to  wages,  hours  and  con- 
ditions of  employment,  but  set  up  machinery  by 
which  the  observance  of  these  terms  can  be  en- 
forced on  each  side,  and  by  wliicli  disputes  between 
the  parties,  as  they  arise,  can  be  adjusted  or  if 
necessaiy  arbitrated  without  stoppage  of  work. 
Collective  bargaining  does  not  mean  the  closed 
union  shop,  or  even  necessarily  the  preferential 
union  shop.  In  Rochester,  for  example,  the  open 
shop  prevails  in  the  men's  clothing  trades,  and  in 


other  cities  tlie  ])iefereHti;il  iiiiioii  sli()]».  It  does 
mean,  liowever,  tliat  both  eni])loyeis  and  einployees 
reco<iiiize  a  nuitual  obligatiDU  net  to  alter  the  basic 
character  of  tlie  cnijilox  nient,  except  hy  conference 
and  afjjreenient  lu^tween  tlie  employers  and  the 
union,  or  in  case  of  disaj^reement,  by  resort  to  the 
machinery  of  arbitration  established  foi-  the  indus- 
try. 

The  central  ixwul  at  issue  in  the  case  at  bar  is 
whether  it  is  lawful  for  a  naticnial  union,  repre- 
seutinii  eni])loyces  in  other  factories  in  the  same 
as  well  as  in  other  cities,  to  use  means  not  in  them- 
selves tortious  to  secure  collective  bargainini»-  in  a 
factory  which  has  theretofore  refused  to  enter 
into  an  aureement  with  tlu'  union.  If  this  pnr- 
jtose  is  unlawful,  it  is  obvictus  that  all  means 
adopted  in  pursninir  it  are  illepil,  however  in- 
trinsically lawful  they  may  be.  Hence  the  (jues- 
tion  lies  at  the  threshold  of  the  case.  W(^  will  con- 
sider, fii-st,  the  cases  in  the  New  York  Court  of 
A])peafs,  bearin.ii'  upon  the  subject;  second,  whether 
the  recent  case  of  Hitchman  Con]  d-  Coke  Co.  v. 
MitrhcJl,  in  the  United  States  Supreme  Court,  245 
V.  S.,  221).  affords  any  reason  for  departino-  from 
ilie  doctrine  of  the  New  York  cases;  and  third, 
what  udieial  priu(i]il( .-.  ai)plicable  to  the  case  at 
liar.   I  he   New    ^'oi  k  cases  (\><tablish. 


The    Leading    New   York    Cases. 

Cun-nn  v.  CaJm.  \Wl  X.  V..  :{;;.  The  |.laiiilifr 
was  an  en<,nn(('r.  (Mnployed  hy  a  hrewiiiu  c<.iiii»any 
in  Rochester.  He  brouuht  suil  ai^ain.^l  the  local 
officers  of  an  (;r.i:a]iization  of  i  he  Kni-lits  ot  Lalior. 
.illciiiui;  a  malicious  consj)iiacy  to  injui-e  him.  and  a 
thi-eat   to  i)rociire  his  dischai.uc  if  I;c  did   ui.t    join 


6 


the  Knights  of  Labor,  and  to  "make  it  impossible 
to  obtain  employment  in  the  city  of  Rochester  or 
elsewhere."  Upon  his  refusal  to  join,  the  com- 
l>laint  alleged  that  the  defendants  "made  complaint 
to  the  plaintiff's  employei-s  and  forced  them  to  dis- 
charge him  from  their  employ,  and  by  false  and 
malicious  reports  in  regard  to  him,  sought  to  bring 
him  into  ill  repute  with  members  of  his  trade  and 
employers  and  to  prevent  him  from  prosecuting  his 
trade  and  earning  a  livelihood." 

To  this  complaint  there  was  an  answer  denying 
all  the  allegations  except  those  relating  to  the 
organization  of  the  union,  and  a  separate  answer 
setting  up  an  agreement  between  the  Ale  Brewers' 
Association  and  the  local  assembly.  Knights  of 
Labor,  providing,  among  other  things,  that  no  per- 
son should  be  employed  by  any  brewer  member  of 
the  association  for  more  than  four  weeks,  unless 
lie  joined  the  Knights  of  Labor;  that  the  plaintiff 
was  employed  in  violation  of  this  agreement ;  and 
that  the  defendants  so  notified  his  employer,  i'solely 
in  pursuance  of  said  agreement  and  in  accordance 
with  tlie  terms  thereof,  and  without  intent  or  pur- 
pose to  injure  the  plaintiff  in  any  way."  To  this 
separate  answer  there  was  a  demurrer,  which  was 
sustained  at  Special  Term  and  in  the  Ap])ellate 
Division. 

On  appeal  to  the  Court  of  Apjteals,  the  decision 
was  affirmed.  The  opinion  of  the  Ccurt  recognizes 
the  lawfulness  of  combinations  of  workingmen 
who^e  purpose  is  to  raise  wages,  but  asserts  that 
such  combinations  become  illegal  "when  they  are 
so  extended  in  their  operation  as  either  to  intend, 
or  to  accomplish,  injury  to  others." 

The  following  extracts  from  the  opinion  sIioav 
what  the  Court  conceived  to  be  the  principle  a])- 
])licable  to  such  cases: 


"Public  policy  and  the  interests  of  society 
favor  the  utmost  freedom  in  the  citizen  to 
piii'sne  his  lawful  trade  or  calling]:,  and  if 
the  jjurpose  of  an  orpmization  or  combina- 
tion of  workinjjmen  be  to  hamper,  or  to  re- 
strict, that  freedom,  and,  throujjh  contracts 
or  ai-raniicnients  with  employers,  to  coerce 
other  workinnTiien  to  become  members  of  the 
organization  and  to  come  under  its  rules  and 
conditions,  under  the  penalty  of  the  loss  of 
their  position,  and  of  deprivation  of  em- 
])loyment,  then  that  purpose  seems  clearly 
unlawful  and  militates,  ag^ainst  the  spirit  of 
our  Gfovernment  and  the  nature  of  our  insti- 
tutions" (p.  37). 

"While  it  may  be  true,  as  arjrued,  that  the 
contract  was  entered  into,  on  the  part  of 
the  Ale  Tirewers'  Association,  with  the  object 
of  avoidinji'  disputes  and  conflicts  with  the 
workin.umen's  organization,  that  feature  and 
such  an  intention  cannot  aid  the  defense,  nor 
legalize  a  plan  of  compellins-  woi-kinjimen. 
not  in  affiliation  with  the  oruanization.  to 
join  it,  at  the  peril  of  beinjx  deprived  of 
their  employment  and  of  the  means  of  mak- 
iuiX  a  livelihood"   (p.  39). 

Tn  considei-inc;  this  case  in  its  relation  to  the 
later  cases-  in  the  Court  of  Ap])eals,  it  is  important 
to  bear  in  mind  : 

M)  That  the  case  Avas  decided  on  pleadinj^s, 
and  not  on  evidence. 

(2l  That  the  allcuations  in  tlic  comidaint.  whicli 
<1<)  not  appear  to  have  been  ex])1icitly  denied  in 
the  se])arate  answci-.  cliar-zcd  a  malicious  con- 
spiracy to  drive  the  plaintiff  out  of  employment 
rrrn/irhrrr,  not  merely  in  Kru-hester.  or  in  that 
•^niploynient.  or  in  cniployniciits  in  which  the  union 
MT.s  represented. 


8 


(3)  That  uo  facts  were  alleged  or  proven  show- 
ing; the  necessary  connection  between  unionization 
and  economic  betterment.  All  the  Court  could  do 
was  to  speculate  upon  the  connection.  The  Court's 
remark,  quoted  above,  that  if  such  a  connection 
existed  it  was  immaterial,  was  mere  dictum,  since 
there  was  neither  allegation  nor  proof  that  the 
connection  existed. 

National  Protective  Association  v.  Cuinnnnfi, 
170  N.  Y.,  315.  The  defendant  in  this  case  was 
the  walking  delegate  of  a  union  of  steamfitters. 
The  union  required,  as  a  condition  of  membership, 
that  applicants  pass  an  examination  and  pay  an 
admission  fee.  The  plaintiff,  having  failed  to  ivass 
this  examination,  organized  a  rival  union  of  steam- 
fitters.  The  defendant  union  thereupon  adopted 
a  policy  of  refusing  to  permit  its  employees  to 
work  on  any  job  on  which  members  of  the  plain- 
tiff's union  were  employed.  The  xDlaintiff  sued  for 
an  injunction,  which  was  awarded  in  the  trial  court, 
but  reversed  in  the  Appellate  Division  (53  App. 
Div.,  227). 

In  the  Court  of  Appeals  a  majority  of  tlie  court 
affirmed  the  decision  denying  the  injunction.  Chief 
Judge  Parker's  opinion  asserts  broadly  the  right 
to  strike;  the  right  to  give  a  reason  for  the  strike; 
and  the  right  to  threaten  to  strike  unless  the  griev- 
ance is  remedied.  For  the  sake  of  argument  he 
conceded  that  a  strike  for  a  wrongful  puri>ose 
might  be  actionable. 

"There  is  no  pretense,"  he  said,  "that  the  de- 
fendant associations  or  their  walking  delegates  had 
any  other  motive  than  one  which  the  law  justifies 
of  attempting  to  benefit  their  members  by  securing 
their  employment.  Xowhere  throughout  that  find- 
ing will  be  found  even  a  hint  that  a  strike  was 
ordered  or  a  notification  given  of  the  intention  to 


9 


order  a  strike  for  the  purpose  of  acconiplisliin-; 
any  otlier  result  than  that  of  seCurinp:  tlie  disehariie 
of  tlie  members  of  the  i>laintitf  association  and  the 
substitution  of  mendiers  of  the  defendant  associa- 
tions in  tlieir  place"  (pp.  327,  r>28). 

Judue  \'ann,  writin«»  the  dissentinj;-  opinion,  took 
the  vi(nv  that  a  strike  to  compel  an  employer  to 
urant  hiiiher  wa<i-es  was  lawful,  but  that  a  strike 
to  compel  him  to  discharge  other  employees  was 
unlawful. 

It  will  be  observed  that  on  the  precise  facts  of 
the  case  the  (piestion  of  unionization  was  not  in- 
volved at  all.  The  union  did  not  demand  either 
collective  bargaining,  or  exclusive  or  preferential 
cmpl(;ym('nt  of  its  mendiers.  The  only  question 
involved  was  whether  they  could  concertedly  refuse 
to  work  with  the  mend^ers  of  a  rival  union.  More- 
over, there  were  admittedly  some  shops  in  which 
ni('mb<Ms  of  the  defendant  union  were  not  employed, 
and  in  which,  theiefore.  there  was  no  obstacles  to 
em])loyment  of  members  of  the  plaintiff's  union. 
While  tlie  language  of  the  case  is  therefore  incon- 
sistent with  the  language  in  Ciirran  v.  GaJeu,  the 
point  decided  is  not  inconsistent.  The  majority 
opinion,  by  Thief  dudge  Parker,  does  not  mention 
('iirran  v.  dalcii,  but  in  I iic  Appellate  Division  that 
cas(>  was  distinguished  on  the  ground  that  it  in- 
volved an  attempt  to  exclude  the  plaintiffs  from 
(Miipbiymcnt  e\erywhere,  in  Rochester  and  else- 
where, and  on  the  ground  that  the  complaint  in 
('iirnin  v.  ddl^u  alleged  malice  and  the  use  of 
fal.^'C  i-cpoits.  Tlie  concuriing  opinion  of  Judge 
Gray,  in  the  C  :)urt  of  Appeals,  distinguishes  Cur- 
rtiii  v.  (I'dirn  on  tlic  same  grounds. 

Jacobs  V.  Cohen,  183  X.  Y.,  207.  In  tliis  case 
a  <-lotliing  manufactui'cr  made  an  agiccment  with 
a  union.  i'ci)re.venting  excdusivcly  the  employees  in 


10 

his  own  shop  (although  affiliated  with  the  United 
Garment  Workers).  The  agreement  provided  for 
a  closed  union  shop.  As  security  for  his  promise 
to  stand  by  the  agreement,  he  executed  a  promis- 
sory note  to  the  union.  The  union  later  claimed 
a  violation  of  the  agreement,  and  its  president  on 
behalf  of  the  union  brought  suit  on  the  promissory 
note.  The  answer  set  up  the  closed  shop  agi*ee- 
ment,  and  claimed  that  it  rendered  the  note  void 
for  illegal  consideration.  The  plaintiff  demurred, 
and  was  sustained  by  the  Trial  Judge.  The  Appel- 
late Division,  however,  reversed,  on  authority  of 
Currmv  v,  Galen. 

In  the  Court  of  Appeals,  the  decision  of  the  Ap- 
pellate Division  was  reversed.  The  Court  pointed 
out  that  the  agreement  appeared  to  have  been 
voluntarily  entered  into  between  the  employer  and 
his  own  workmen. 

"If  it  might  operate  to  prevent  some  per- 
sons from  being  employed  by  the  firm,  or, 
possibly,  from  remaining  in  the  firm's  em- 
ployment, that  is  but  an  incidental  feature. 
Its  restrictions  were  not  of  an  oppressive 
nature,  operating  generally  in  the  commun- 
ity to  prevent  such  craftsmen  from  obtaining 
employment  and  from  earning  their  liveli- 
hood.    *     *     * 

Nor  does  the  answer  aver  that  it  was  in- 
tended, thereby,  to  injure  other  workmen: 
or  that  it  was  made  with  a  malicious  motive 
to  coerce  any  to  their  injury,  through  their 
threatened  deprivation  of  all  opportunity  of 
pursuing  their  lawful  avocation"  (p.  211). 

The  case  is,  of  course,  distingTiishable  fi-om  tlie 
case  at  the  bar  because  there  was  no  allegation  of 
any  attempt  by  persons  outside  the  particular  shop 
to  procure  the  unionization  of  the  shoji.  The  agree- 
ment was  found  tO'  have  been  voluntarily  entered 
into  between  the  employer  and  his  own  employees. 


11 

It  was,  however,  an  agreeiuent  for  a  closed  uiiiou 
shop,  and  the  case  establishes  the  law  of  New  York 
that  such  a  closed  sliop  is  not  in  ;ii  I  of  itself 
illegal. 

McConl  V.  Thoiiii)so)iSl(irrcl1  Co.,  129  App.  Div., 
laO;  aflf'd  without  opinion,  198  N.  Y.,  587.  Thi^ 
case  involved  one  stage  in  a  long  contest  between 
the  building  trades  of  New  York  and  tlie  l^rother- 
hood  of  Carpenters,  later  stages  of  which  will  rc;i]»- 
pear  in  several  snbsecpieut  cases.  The  builders  of 
New  York  had  formed  the  Building  Trades  Eniploy- 
ei-s'  Association,  and  provided  in  their  constitution 
that  niend)ers  must  file  bonds  conditioned  on  their 
obeying  all  orders  of  the  Board  of  Governors.  The 
Board  ordered  a  general  lockout  of  all  mendjers  of 
the  Brotherhood  of  Carpenters.  The  plaintiff,  a 
meml>er  of-  tlie  (Muployers'  association,  obeyed  (his 
order.  SubsiMpiently  an  emergency  coiiimittee  of 
the  employers*  as.^ociation  issued  an  onler  directing 
its  memlmrs  to  re-employ  only  such  men  as  would 
join  a  newly  formed  union,  the  Grreater  New  York 
rar])entersV'  Union.  This  order  was  circulated  un- 
der the  signature  of  the  seci-etary  of  the  Board  of 
(lovernors.  The  plaint  ill  refused  to  obey  this  oi-der, 
and  his  bond  was  declared  forfeited. 

Upon  this  state  of  facts,  the  A])p('llati'  Divisiisn 
was  divided  in  opiiiiiii.  A  maj(5rity  Avcre  cf  the 
opinion  (  1  )  that  tlie  geneial  lockout  ordei-  was 
legal,  but  that  it  was  obeyed;  (2)  that  the  order 
to  employ  only  mciiibci-  of  the  New  Yoi'k  Carpen- 
tere'  Union  was  an  oi-dcr  of  the  Board  of  Governors 
Avithin  the  m«'aniiig  of  the  b(;nd.  i  ."I  i  but  tliat  the 
order  was  illegal.  They  theicfoic  concluded  that 
violation  of  this  ordei-  could  not  b<'  made  the  basis 
for  a  forfeit II i-e  of  the  bon<l.  A  niimirily  took  a 
different  view.  They  agreed  (liat  the  general  lock- 
out oi'<lei-  was  legal.     They  conced<'(l  Ihni   the  older 


12 


to  employ  only  members  of  the  new  union  was 
illegal.  Bnt  they  concluded  that  it  was  the  order 
of  the  emergency  committee,  and  not  the  order  of 
the  Board  of  Governors.  They  found,  however, 
that  the  order  calling-  a  general  lockout,  which 
was  duly  issued  by  tlie  Grovernors,  also  pi'ovided 
tliat  only  such  men  should  be  re-employed  as  agreed 
to  woi-k  under  a  general  arbitration  agreement  to 
which  the  employers'  association  was  a  party.  And 
this  order,  the  minority  said,  the  defendants  "seem 
to  admit"  that  they  disobeyed. 

The  Court  of  Appealst  affirmed  the  decision, 
without  oj^inion.  The  decision  has  been  quoted  as 
holding  that  a  general  agreement  to  employ  only 
members  of  a  union  is  illegal.  But  it  is  apparent 
that  this  isi  liy  no  means  the  necessaiw  import  of 
the  Court  of  Appeals  decision.  The  decision  of  the 
Ai)i)el]ate  Division  would  be  sustained  if  the  Court 
of  Appeals  found  that  the  order  to  employ  only 
members  of  the  union,  whether  legal  or  illegal^ 
was  not  the  act  of  the  Board  of  Governors,  and 
tluit  all  orders  of  that  Board  were  properly  obeyed. 
Hence  the  case  cannot  properly  be  cited  as  a  prece- 
dent in  the  Court  of  Appeals  for  the  illegality  of 
a  combination  to  exclude  all  but  members  of  a 
particular  union. 

Kissam  v.  United  >)tatrs  Printuui  Co.  and  J//7/.S 
V.  United  States  Printing  Co.,  11)9  X.  Y.,  76.  These 
cases,  decided  together,  are  of  great  importance, 
and  come  vei-y  close  to  tlie  case  at  bar.  The  plain- 
tiffs were,  in  the  Mills  case,  an  employee,  and  in 
the  Kissam  case  an  employee  Avho  was  also  a  stock- 
holder, of  the  defendant  printing  conijiany.  Tlie 
defendants  wei'e  the  printing  c(Hn])any  and  officers 
of  the  International  Stereotypeis  &  Electi'otypers 
Union.  The  plaintiffs  were  non-union  stereotypers,. 
and  claimed  that  the  union  Avas  inducing  the  print- 


13 


iiig  company,  by  strikes,  threats,  etc.,  to  tliscliarge 
them  from  its  employ.  They  secured  a  preliminary 
injuiR-tion  i-cstraiiiinii  the  company  from  discharg;- 
inji"  them  mi  tlu^  urduiul  that  they  were  not  members 
of  the  union,  and  restraininu  the  union  ofticials 
from  ''interfering:""  with  tlie  i>laintitt"s  or  other  non- 
union workmen  in  the  company's  employ,  fi-oni 
••organizing-  a  strike  against  the  said  defendant 
|)rinting  comitany,"*  an<l  from  picketing  or  boy- 
cotting the  (-(.nipany.  Snbsecpiently  the  8i)ecial 
Term  refused  to  continue  the  injunction  against 
the  printing  com])any,  but  continued  the  injunction 
against  the  union  ofticers.  Thereafter  the  printing 
I'omitany  dropped  out  of  the  case,  and  the  issue 
was  solely  between  tlie  non-union  cinjtloyees  and 
the  union  ofticials.     The  union  ai)pealed. 

In  the  Ai^jxllate  Division  the  injinn-tion  was 
materially  moditied  {Mills  v.  U.  >s'.  Print hiy  Co., 
1)9  App.  Div..  (>()5).  Merely  oiganizing  a  strike, 
under  the  ciicumstances  set  forth,  the  Conrt  held 
not  t(>  be  ilb^gal.  Picketing  and  boycotting  were 
illegal  only  if  acronijianied  by  foi'ce,  violence,  or 
unlawful  coercive  measui(s.  \\'itli  tlie  injnnction 
thus  moditied.  the  case  went  to  trial.        , 

By  this  time  it  ajjpears  that  the  ])rinting  com- 
itany had  reachcil  an  agreement  with  the  union, 
and  had  undertaken  to  employ  only  memliers  ot 
the  nniitn  in  its  stereotyping  department.  The 
])laintitts  Avere  therefoie  de]irived  of  tlu'ir  jobs. 
The  Trial  ((iiit  rt  fused  to  gi-ani  an  injunctioii. 
and  the  decision  was  attirmed  withont  ojtinion  by 
the  Apiudlate  Division    (iL'S  A]))!.   Div..  SS!>.  SUi)  \ . 

The  ('(Hirt  of  Apjteals  sustained  the  decision. 
up(Mi  the  facts  found  by  the  'I'lial  Couil,  which 
it  summarized  ;is  frJlows: 


14 


"The  learned  trial  court  found  that  the 
execution  of  the  agreement  between  the 
TTnited  States  Printing  Company  and  the 
several  lal>or  unions  resulted  in  great  finan- 
cial benefit  to  the  former,  and  disposed  of 
tlie  ditierences  between  the  parties ;  that 
tlie  agreement  was  not  entered  into  for  the 
])urpose  of  gratifying  malice  against  the 
non-union  employes  of  the  printing  company 
or  of  inflicting  injuiy  upon  them ;  that  it 
was  not  the  object  of  the  defendants  to  com- 
pel the  plaintiffs  to  join  the  unions;  that 
no  pressure,  so  imperative  as  to  amount  to 
compulsion,  was  exerted  upon  the  printing 
company  with  regard  to  the  discharge  of  the 
])laintiffs  from  their  employment,  and  that 
there  was  no  conspiracy  to  compel  the  plain- 
tiffs to  join  the  unions  or  solely  to  injure 
them  in  their  employment"  (]).  79). 

The  case  comes  very  close  to  the  one  at  bar.  The 
defendant  was  a  national  union,  and  it  used  its 
])ower  to  induce  a  particular  employer  to  unionize 
his  shop.  The  means  used  included  the  calling  of 
strikes,  picketing,  boycotting,  etc.,  etc.  The  first 
case  in  the  Ai^pellate  Division  is  therefore  precisely 
in  accord :  indc^l  it  goes  even  further,  since 
the  agreement  was  for  a  closed  union  shop.  Sub- 
sequently, it  is  true,  the  printing  company  yielded, 
so  that  it  was  no  longer  a  case  of  forcing  unioniza- 
tion on  an  unwilling  employer.  But  if  the  purpose 
of  the  union  was  illegal,  clearly  the  plaintiff  could 
sue,  after  tlie  wrongful  pui'pose  was  achieved,  as 
well  as  while  the  defendants  were  merely  attempt- 
ing to  achieve  it.  The  decision  of  the  Court  Of 
Appeals  necessarily  involved,  therefore,  the  proposi- 
tion that  a  national  union,  whose  general  objects 
were  lawful,  could  in  pursuance  of  those  objects 
bring  economic  pressure  to  bear  on  an  employer 
to  compel  him  to  discharge  all  non-union  men,  and 
to  sign  a  general  agreement  with  the  union. 


15 

Bossert  v.  Dhuij,  221  N.  Y.,  342.  Tliis  case  in- 
volves another  stajie  in  tlie  contest  between  the 
buildin«::  and  wood  nianufacturinii:  trades  and  the 
United  Brotherhood  of  Carpenters  and  Joiners. 
It  is  important  to  understand  the  liistoiw  of  the 
litiiiation.  (\irpenters  are  employed  lioth  to  manu- 
facture and  install  woodwork  on  buildings,  and  in 
factones  whii-h  prepare  woodwork  (doors,  frames, 
sashes,  etc.)  for  subsequent  installation.  These 
two  classes  of  em])loYment  naturally  compete  with 
each  other,  and  after  many  disputes  a  working 
agreement  was  made  between  the  Brotherhood  and 
the  ^ranufacturing  Woodworkers  Association  defin- 
ing what  types  and  sizes  of  woodwork  should  be 
made  in  factories,  and  what  made  liy  carpenters 
immediately  employed  on  the  buildings.  The  agree- 
ment pi'ovidcd  that  the  manufaoturei-s  would  em- 
ploy union  men,  and  that  the  car]ienters  would  not 
work  on  any  building  which  used  woodwork  manu- 
factured in  a  non-union  factory. 

This  agreenumt  achieved  the  unionization  of  vir- 
tually all  the  wood  mills  in  Manhattan,  but  Brook- 
lyn icinained  V(  ry  largely  a  non-union  field.  At 
the  1010  convention  of  the  Brotherhood  it  was 
therefoi-e  voted  to  undertake  a  campaign  of  union- 
i/a!ioii  in  llrodklyii.  Organizers  of  the  union 
theieujjon  notified  the  Brooklyn  Builders  Associa- 
tion that  they  would  work  only  on  buildings  which 
used  union  trim,  and  soon  after  called  strikes  of 
th«'ir  members  on  four  Ituildings  at  which  trim 
manufactured  by  the  Albro  J.  Newton  <~'omi>any, 
a  non-union  factory,  was  being  used.  The  com])any 
asked  for  an  injunction,  and  in  Ncirlou  (^ompnnrj  v. 
KrUksnu.  70  Misc..  201.  such  an  injunction  was 
granted  liy  dust  ice  HIackmar.  The  roui-t  said  that 
tlie  UM'ans  einjiloyed — the  calling  of  strikes— was 
biwfiil,  l;iit  that  tlic  end  in  aIcw — injnry  to  tlic 
jdninlif'l   by  in^lucing  his  cnstoincis  to  leave  liini — 


16 

was  unlawful.  The  decision  was  affirmed  without 
opinion  by  the  Appellate  Division  (144  App.  Div., 
939). 

A  year  later  the  union  organizers  made  a  new 
effort,  this  time  directed  against  another  non-union 
manufacturer,  L.  Bossert  &  Bon.  They  called 
strikes,  as  before,  on  four  buildings  using  the  trim 
of  this  company.  An  injunction  was  again  issued, 
restraining  the  defendants  from  conspiring  "in  any 
manner  to  injure  or  interfere  with  the  good  will, 
trade  or  business  of  the  plaintiff' si  co-partnership, 
for  the  purpose  of  coercing  plaintiffs  to  employ 
union  labor,"  either  by  threatening  his  customers 
with  labor  trouble,  or  by  enforcing  any  by-laws  or 
regulations  requiring  their  members  not  to  work 
on  non-union  trim.  Soon  after  an  organizer  went 
to  a  bnilding  in  Brooklyn,  informed  the  carpenters 
working  there  that  non-union  trim  was  being  used 
on  tlie  building,  and  they  at  once  ceased  work.  He 
was  brought  up  on  contempt  proceedings,  but  Jus- 
tice Crane  (now  of  the  Court  of  Appeals)  denied 
the  motion  (Bossert  v.  United  Bvotherliood  of  Car- 
penters, 77  Misc.,  592),  He  observed  that  it  was 
not  unlawful  merely  tO'  inform  tlie  men  that  tliey 
were  using  non-union  trim,  and  that  the  affidavits 
did  not  reveal  that  anything  more  was  done.  But 
his  opinion  went  fnrther.  Even  if  the  organizer 
had  threatened  fines  and  expnlsion  from  the  union 
if  the  men  did  not  stc^p  work,  he  considered  that 
the  injunction  would  not  be  violated  unless  the  acts 
were  done  "for  the  purpose  of  interfering  with  tlie 
good  will  of  the  plaintiff's  co-partnership."  In  this 
case  he  found  the  organizer  was  acting  for  the 
juirpose  of  legitimately  advancing  the  interests  of 
the  brotherhood,  and  hence  Avas  acting  lawfully. 

In  the  meantime  the  injunction  in  the  Bossert 
case  went  to  ti-ial.  Justice  Putnam  summarized 
the  effect  of  the  testimonv  as  follows: 


17 


^'Tlie  full  and  elaborate  proofs  iu  this 
hearing-  raise  sciuarely  the  rigiit  of  the  orga- 
nized body  of  car]>eiiters  to  single  out  one 
non-union  mill,  <uid  direct  their  members  to 
refuse  to  work  on  material  which  it  pro- 
duces, as  a  step  in  the  contiict  which  the 
labor  organization  is  conducting  against 
non-union  mills  in  Brooklyn  borough''  (p. 
255). 

Tliis  right  the  Court  denied,  holding  that  since 
the  uniim  had  singled  out  one  non-union  mill,  it 
was  acting  "aftirmatively  and  aggressively,  as  the 
damage  to  the  good  will  and  business  of  the  plain- 
tiff iv«i  the  specific  object  aimed  at,  the  direct  result 
sought,  (xranted  that  the  selection  of  the  plaintiffs 
was  made  with  no  personal  hostility,  and  was  an 
act  to  affect  ultimately  the  whole  body  of  non- 
union mill  ownei-s,  the  destructive  result  to  ])lain- 
tiffs  is  not  mitigated." 

The  Trial  Court  uuide,  however,  a  number  of 
findings  of  fact,  of  which  tlie  most  imjiortant  may 
be  summarized  as  follows:  That  the  rules  regard- 
ing work  on  non-union  trim  antedated  the  strikes 
again.st  the  plaintiff's  material,  and  applied  gen- 
erally; that  the  product  of  non-union  mills  com- 
petes with  the  ju'oduct  of  the  union  cai'penters: 
that  the  union  rate  of  wages  and  hours  tends 
town  1(1  a  higher  and  better  standard  of  living; 
that  the  union  does  not  make  its  wage  rate  the 
maximum,  l>ut  permits  its  members  to  earn  more; 
that  the  defendants  were  actuated  by  the  motive 
of  bettering  llicir  conditions;  that  tliere  was  no 
violence  or  threat  of  violence,  and  no  tlireat  at  all 
excepting  threats  to  enforce  their  by-laws;  that 
tlie  defendants  did  tiothing  to  interfere  with  the 
plaintiff's  getting  nf>n-u?ii<ui   carjtenters. 

The  decision  gi-anted  an  injtinction  against  call- 
ing strikes  oil  liniMiugs  in  onlei-  to  pi-c\<M)t  luiiMfi-s 


IS 

from  using  the  plaintiff's  trim;  and  both  the  de- 
cision and  the  findings  of  fact  were  affirmed  by 
a  unanimous  decision  of  the  Appellate  Division, 
which  adopted  the  opinion  of  the  Trial  Court  (Bos- 
scrt  V.  Dhup,  166  App.  Div.,  251). 

The  case  then  went  to  the  Court  of  Appeals,  and 
the  decision  granting  the  injunction  was  reversed, 
unanimously.  The  Court  quoted  in  full  the  find- 
ings of  fact  above  summarized,  and  continued : 

''In  considering  this  finding  of  the  court 
we  must  keep  in  mind  the  fact  that  the 
action  of  the  Brotherhood  did  not  interfere 
with  any  contract  between  employer  and 
employee.  Its  action  was  open  and  clearly 
defined  and  its  enforcement  was  not  designed 
to  and  did  not  include  any  force,  fraud, 
threat,  or  defamation.  Its  action  was  volun- 
tary and  concerned  labor  competition  in 
which  the  association  and  its  members  are 
vitally  interested   (p.  358). 

^  *  ^  ^  -K-  7;- 

It  appears  by  findings  that  are  incontro- 
vertibly  established  by  reason  of  the  unani- 
mous/ affirmance  of  the  Special  Term  by  the 
Appellate  Division  that  it  was  not  the  intent 
and  purpose  of  the  defendants  in  this  case 
to  injure  the  good  will  or  Imsiness  of  the 
plaintiffs  as  individuals  or  of  non-union 
manufacturers  generally"    (p.  ;>55l. 

In  discussing  particularly  the  contention  of  the 
Trial  Court  that  a  strike  against  buiblers  who  used 
the  plaintiffs'  materials  was  illegal,  the  Court  said  : 

"The  bounds  beyond  which  an  association 
of  em])loyees  may  not  as  a  general  rule  go 
in  controlling  its  meml>ei-s  in  their  dealings 
with  em])loyers  are  not  easily  determined. 
They  cannot  at  least  extend  beyond  a  point 
where  its  or  their  direct  intere.»ts  cease. 
There  is  a  material  difference  in  tlie  power 


19 

of  an  association  so  fai*  as  it  aflVcts  its  pri- 
mary or  secondary  interest.  Where  the  acts 
of  an  eni])h)yee  or  eni])loyees  in  their  indi- 
vidual or  associate  capacity  aie  reasonably 
and  directly  calculated  to  advance  lawful 
objects,  they  should  not  be  icstraiiu'd  by  in- 
junction    *  *"   {  p.  ;>1>5  ). 

In  the  case  now  before  us  if  the  defend- 
ants had  called  upon  tlie  public  j^enerally  to 
discontinue  usinj;  the  plaintilTs'  material 
and  had  sought  to  prevent  all  peisons  by 
communications,  written  or  otherwise,  from 
dealin<i-  with  tlu»  i)laintiffs,  their  acts  would 
have  been  ilieiial"  (]>.  -Wi)). 

The  case  holds,  necessarily,  two  thinjj;s:  First, 
that  it  is  not  unlawful  for  a  national  union  to 
endeavor  to  unionize,  by  economic  ])rei>-sure,  a  shop 
which  does  not  employ  union  mendters;  and  second, 
that  in  i)ursuanc('  of  this  i)uip(ise  it  is  not  unlawful 
to  put  into  eltect  a  boycott  within  the  indiistri/. 
Tr  does  not  extend  to  the  case  of  a  boycott  exercised 
through  other  industries.  It  does  not  cover  the 
case,  for  instance,  of  a  coal  minei-s'  union  which 
induces  a  railway  union  to  compel  the  lailway  to 
boycott  the  mine,  or  which  induces  an  electrical 
M'(M'kers'  uni(Ui  to  compel  the  (dectnc  light  plant 
t{»  boycott  the  mine.  The  carpenters  employed  by 
builders  and  the  carpentei-s  employed  by  woodwork 
nuinufacturers  were  in  tiie  sanu'  industry,  and  cuni- 
jseled  \\itli  each  otluM*.  The  existence  of  non-union 
factories  was  a  nK-nace  to  the  standaids  and  lules 
established  by  the  cariKMiters  em])loyed  on  build- 
ings. The  bi.ycoti  did  not  therefore  extend,  as  the 
('oiirl  says,  "bcyoml  a  jioiiil  w  licic  its  oi-  their 
interests  ceas^'." 

Aiihuiii  Dnijiliui  Co.  \.  W'dKlcN,  I'l*!  X.  '\'..  1. 
The  [ilainiilt  in  l!i;s  case  was  the  largest  trucking 
concei-n   in   Aii1mi:'?i.      In    l!ll2,  a    teanistcis*   union 


20 


was  formed,  and  attempts  were  made  to  induce 
the  plaintiff's  emplo^-ees  to  join,  but  the  attempts 
generally  failed.  The  teamsters'  union  therefore 
adopted  a  resolution  declaring  the  plaintiff  to  be 
"unfair."  The  Central  Labor  Union  then  inter- 
vened, and  endeavored  to  negotiate  with  the  plain- 
tiff, but  he  took  the  position  that  he  did  not  care 
whether  his  men  joined  the  union  or  not,  and  that 
he  would  not  compel  them  to  join.  The  Central 
Labor  L^nion  thereupon  formally  approved  the  sen- 
tence of  "unfairness"  imposed  on  the  plaintiff  by 
the  teamsters.  Then  began  a  "systematic  cam- 
paign," by  means  of  strikes,  and  threats  of  strikes, 
to  compel  customers  of  the  plaintiff  to  withdraAv 
their  patronage.  A  building  contractor,  butchers, 
bakers,  merchants,  any  customer  in  shr^rt  who  used 
union  labor  of  any  description,  was  threatened  with 
a  strike  if  he  employed  the  plaintiff's  teams  for 
trucking.  It  was  shown  that  the  declaration  of 
principles  of  the  Central  Labor  Union  included 
tl-e  following: 

"  'We  shall  withdraw  and  use  our  influence 
to  have  others  withdraw  all  patronage  from 
any  unfair  employer,  or  any  person  patroniz- 
ing such  unfair  employer,  let  his  calling  be 
what  it  may'  "  (p.  5 ) . 

The  constitution  of  the  Central  Labor  Union  also 
provided  fines  and  expulsion  for  non-conformity 
with  its  orders. 

In  tlie  Appellate  Division  (ITS  App.  Div.,  270) 
an  injunction  restraining  this  boycott  was  sus- 
tained Ity  a  majoiMty  of  the  court. 

"In  the  case  at  bar,''  said  tlie  court,  "the 
trial  court  has  found  u}jon  ample  e\idence 
tliat  the  primary  purpose  sought  by  the  de- 
fendants was  the  injury  and  destruction  of 
plaintiff's  business,  and   that  altliougli  |»er- 


;  21 

liaps  opoii  to  tlie  suu'uostioii  that  tlierc  was 
iiii  ultimate  hope  of  benefit  to  oi-^aiiized 
labor,  the  iimiiediate  business  in  hand  was 
to  injure  the  i)laintiif'.  If  these  facts  are 
well  fjrounded  in  this  record,  then  we  have 
no  fuitlier  diflicully  foi*  such  a  purpose  is 
unlawful  at  eoninion  law  whether  or  not  it 
offends  any  particular  statute.  8uch  a  ])ur- 
pose  cannot  be  justified  by  argument  that 
each  ]iarticular  stej)  in  the  transaction  was 
lawful  in  and  of  itself"   (]».  270  I , 

In  the  (N)nrt  of  Ai)peals  the  decision  was  unani- 
mously afllniied.  dndjie  (\)llin  pointed  out  that 
the  riji^ht  to  carry  on  busin.ess  unnioleste<l  is  a  prop- 
t.'rty  ri<iht,  and  that  this  property  ri<;ht  had  been 
injured  by  the  defendants..  ^'Unless  the  findin<j;s 
of  the  Special  Term  and  the  facts  present  a  legal 
<'ause  or  justification  for  the  interference  by  the 
<lefeudants  with  the  business  and  ])roi>erty  of  the 
plaintiff  the  jud*>nient  appealed  fi-oni  is  rij»ht  an<l 
must  be  afHrnied"  (]),  9j.  He  concluded  that  there 
Avas  no  such  justification. 

"Their  action  toward  the  destruction  of 
its  [/.  c,  tli('  plaintift's]  business  was  altini)- 
ative  and  a^jj;i  essiv«>.  It  was  not  sini]tly  that 
the  nuMubers  of  Union  No.  (ilJ),  from  which 
the  defendants  insisted  the  i)laintiff  must 
hire  its  einpb)yees,  I'efused  to  be  eni])loye(l 
by  the  ])hiintilf  or  its  patrons,  unless  and 
until  it  employed  mend)ers  of  the  union.  The 
unic'us  and  their  members  souj^ht  to  induce 
and  induced  the  emjdoyers  of  labor  in  the 
vari(;us  trades  and  industries  and  the  ])nblic 
^iMHM-ally  in  that  conimnnity  to  discontinue 
emi)loyinu  and  to  al)slain  I'vom  business 
transactions  with  the  ])laintifT,  l»y  directly 
and  aflirmatively  causini;-  b>ss  an<l  injuiy  to 
tlH'ir  business  or  interests  or  fear  of  loss  and 
injury  to  theii'  business  oi*  interests,  in  case 
they  did  not  so  disci, ntinue  or  abstain  ■■  "'  '" 
,<  p.  !h. 


^2 

In  the  in»tant  case  the  contest  did  not 
arisie  because  the  members  of  Union  No.  679, 
or  members  of  the  same  occupation  and  of 
other  unions,  chose  not  to  work  for  the  plain- 
tiff or  for  or  with  men  who  did  engage  in 
business  with  it,  or  sought  to  persuade,  in 
an  orderly  and  proper  manner,  persons  gen- 
erally to  abstain  from  business  transactions 
with  it.  It  did  not  arise  in  the  ordinary  and 
natural  exercise  by  the  unions  of  the  right 
to  control  their  own  labor  and  of  the  right 
of  asisociation.  It  arose  because  the  defend- 
ants, constituting  the  entire  union  popula- 
tion of  the  city  of  Auluirn,  inaugurated  and 
carried  on,  affirmatively  and  aggressively, 
through  the  agencies  of  fear  and  coercion, 
a  comprehensive  exclusion  of  the  plaintiff 
'  from    the    business    of    the    community,    in 

order  to  compel  it  to  unioni^^e  its  business'' 
(pp.  11,  12). 

These  elements' — the  fact,  that  is,  that  the  unions 
induced  persons  in  otlier  trades,  and  outside  the 
s]>here  of  interest  in  the  controversy,  to  join  in  the 
boycott — distinguished  the  case,  the  Court  said, 
from  the  Bossert  case.  It  is  clear  that  they  dis- 
tinguish it  likewise  from  the  cave  of  t|ie  Amalga- 
mated Clothing  Workers  in  Rocliester.  They  have 
made  no  attempt  to  use  economic  pressure  to  induce 
liersions  outside  the  industry  to  boycott  Micluiels, 
^'tern  &  Company.  Tliey  have  gone  to  other  cloth- 
ing shopsj  and  induced  tliem  not  to  do  the  plaintiff's 
w(n'k.  They  have  appealed  to  tlie  nnderstanding  of 
tlie  public.  But  they  have  kept  within  tlie  limits 
set  bv  the  Wnrdell  case. 


23 
B. 


The    United   States   Supreme   Court    in    the    Hitch- 
man  Case. 

Althon.ah  the  decisions  of  the  New  York  Court 
of  Ai>])oals  wliicli  have  been  reviewed  seem  clearly 
to  establish  lliat  it  is  not  unlawful  for  a  nationally 
organized  union  to  use  persuasive  means,  and  even 
coercive  means  within  the  industry,  to  induce  a 
particular  employer  to  unionize  his  shop,  neverthe- 
less an  attempt  will  undoubtedly  be  made  to  invoke 
the  authority  of  Hiicliman  Coal  tC-  Colxe  Co.  v. 
MitchcU,  245  U.  S..  229,  dei'ided  December  10,  1917. 
This  case  was,  in  fact,  relied  upon  hy  the  Court  in 
sustaininjT;  the  preliminary  injunction  in  the  case 
at  bar.  The  Hitchninn  case  is  therefore  worth  care- 
ful analysis,  to  ascei-tain  to  what  extent  it  affects 
the  decision  of  this  case. 

The  suit  in  that  csae  was  by  a  West  N'irjiinia 
mining;  corporation  ajiainst  the  officials  of  the 
I'nited  Mine  Workers  of  America.  The  mine 
was  OT-iijinally  unionized,  but  after  a  seiies  of 
strikes  and  disaii'rcements  it  decided  to  run  non- 
union. The  superintendent  therefore  stipulated 
oi-ally  A\ith  every  employee  whom  it  took  on  that 
he  would  keep  out  of  the  union  so  lono-  as  he  worked 
for  the  ]>laintiff.  Subse(pient  to  the  bi-inuinj]:  of 
suit  t!ie  acn'P^ment  was  reduced  to  wi-itini:-.  At 
this  time  the  Panliandle  district  of  West  ^''irii•inia 
was  in  jjeneral  non-union  tei'ritory,  wliilc  Oliirt, 
Indiana  and  Illinois  were  unionized. 

At  tie  national  convention  of  the  Fnitcd  Mine 
AVoikci-s  in  iTidianajioJis  tliei-e  was  a  ueiKM-al  <lis- 
cussion  of  the  need  of  oi-iianizinir  the  Patdiandle 
disti'ict,  so  as  to  eliiuinatc  I  lie  injurious  (onijx'ti- 
tion  of  non-union  mines.  It  was  stated  and  undei- 
stood  that  the  disti-ict  could  lie  unionized  (Uilv  bv 


24 


means  of  strikes.  The  convention  approved  a  rec- 
ommendation of  President  Mitchell  that  the  funds 
of  the  national  union  be  used  to  finance  such 
strikes. 

Organizers  were  then  sent  to  ox:>erators  in  West 
Virginia,  who  demanded  that  the  mines  be  run 
"union,"  and  threatened  to  incite  strikes  if  they 
were  not.  The  operators  having  refused,  the  orga- 
nizers proceeded  to  proseletyze  among  the  workers, 
persuading  them  to  sign  statements  agreeing  to 
join  the  union  and  strike  when  called  upon  to  do 
so.  There  was  some  evidence  that  deception  and 
abuse  were  used.  It  was  also  shown  that  the  orga- 
nizers knew  of  the  existence  of  the  contracts. 

District  Judge  Dayton,  on  the  siiit  of  the  Hitch- 
man  Company,  granted  a  restraining  order  (172 
Fed.,  963),  and  the  Circuit  Cburt  of  Appeals  dis- 
missed an  appeal  on  jurisdictional  grounds  (17(5 
Fed.,  549) .  The  case  went  to  trial,  and  Judge  Day- 
ton made  the  injunction  permanent.  His  opinion 
was  based  upon  the  theory  that  the  law  of  Engl  And. 
as  it  existed  prior  to  1776,  forbade  combinations 
of  workingmen  to  raise  wagevs^  or  in  any  way  to 
restrain  trade;  that  this  law  was  adopted  by  Vir- 
ginia in  1776,  and  in  West  Virginia  when  that 
state  separated  from  Virginia ;  and  that  it  bad  not 
been  changed  by  subsequent  legislation.  He  held 
that  the  whole  organization  of  the  United  Mine 
Workers  was  an  illegal  conspiracy  at  common  law 
and  under  the  Sherman  Law,  because  it  undertakes 
to  "control  the  freedom  of  its  members  to  work 
when  and  for  whom  they  please,"  and  to  "destroy 
tlie  right  of  the  employer  to  conduct  his  own  busi- 
ness as  he  pleases"  (202  I'ed.,  512). 

In  the  Circuit  Court  of  Appeals  the  decree  was 
reversed.  The  Court  ]iointed  out  that  the  old  Eng- 
lish law  upon  which  Judge  Dayton  relied  prevailed 
A^'llell   "property   rights  were   recognized  as  para- 


25 


mount  to  personal  rifjhts,"  and  when  labor's  "domi- 
nation bv  the  landlord  and  capitalist  was  absolute 
in  most  respects."  Under  the  modern  concejition 
of  the  law.  the  Court  held,  the  conduct  of  labor 
unions  was  lawful  so  lone;  as  only  persuasion  was 
useil.  It  was  as  lawful  for  the  defendants^  to  induce 
employers  to  deal  only  with  them  as  it  was  for  the 
plaintiff  to  induce  its  employees  not  to  deal  with 
the  <lef(Midants-.  The  interference  with  contracts 
the  Court  held  not  to  be  actionable,  since  the  con- 
tracts were  at  will  only. 

The  Suju-eme  Court  reversed  the  decision  of  the 
Cii-cuit  Court  of  Appeals  and  reinstated  the  in- 
junction. The  opinion  of  the  majority  of  the  Court, 
S])eakinri*  throujih  Mr.  Justice  Pitney,  may  be  sum- 
marized as  follows: 

The  plaintiff  has  a  I'i.aht  to  require  his  emjjloyees 
not  to  join  the  union ;  indeed  that  riiiht  is  protected 
a<]:ainst  leoislation  by  the  Constitution  ( AfJair  v. 
Vuitcd  States,  208  I".  S.,  101  :  Coitpatfr  v.  Knusafi, 
23(;  T'.  S..  1) .  The  plaintiff  has  a  ri.oht  to  the  oood 
will  of  his  employees,  and  to  the  reasonable  prob- 
ability that  they  will  continue  to  work  for  him,  and 
this  rijiht  has  a  ]>ecuniary  value,  and  is  protected 
by  law,  even  if  there  are  no  contracts  which  requir<' 
I  lie  (Mii])l()yc('s  to  continue  to  worlc.  Tlic  riulit  (if 
action  for  persuadinu-  em])loyees  to  leave  their  em- 
])loyers  exists  in  AVest  Vii-jiinia  {TJiarkrr  Con]  Co. 
V.   Hiirhr,  50  West  Va.,  253). 

For  infriniiinjj  this  ri^ht  of  the  plaintiffs,  tin* 
dt  fcndants  have  shown  no  justification.  They  can- 
not justify  under  the  rijiht  of  emjjloyees  to  bettci- 
their  conditions,  because  they  do  not  represent  the 
employee.s  of  the  plaintiff,  but  i-ei)re.sent  employees 
in  other  .'States.  They  cannot  justify  under  the  ri.uht 
of  unions  to  inci-ease  their  mcmlKM-ship.  because 
theii-  jmrjiose  was  nol  so  iimdi  to  enlarge  tlieii- 
memheisliip.  as  to  ((uiipel  the  |ilaintiri'  to  i-eeoniii/c 


26 


and  deal  witli  the  union.  "There  is  no  evidence  to 
show,  nor  can  it  be  inferred,  that  defendants  in- 
tended or  desired  to  have  the  men  at  these  mines 
join  the  Union,  unless  they  could  organize  the 
mines''  (p.  256).  They  cannot  justify  under  the 
right  of  competition,  since  the  defendants  were  not 
competitors  of  the  plaintiff.  Moreover,  illegal 
meansi  were  used.  The  defendants  knowingly  in- 
duced the  men  to  break  their  contracts,  and  they 
used  intimidation.  "The  disordered  condition  of  a 
mining  town  in  time  of  strike  is  matter  of  common 
knowledge.  It  was  this  kind  of  intimidation,  as 
well  as  that  resulting  from  the  large  organized 
membership  of  the  Union,  that  defendants  sought 
to  exert  upon  plaintiff.    *    *    *"  (p.  258). 

"Upon  all  the  facts,"  the  Court  concluded,  "we 
are  constrained  to  hold  that  the  purpose  enter- 
tained by  defendants  to  bring  about  a  strike  at 
plaintiff's  mine  in  order  to  compel  plaintiff,  through 
fear  of  financial  losvS,  to  consent  to  the  unionization 
of  the  mine  as  the  lesser  evil,  was  an  unlawful  pur- 
pose, and  that  the  methods  resorted  to  by  Hughes 
the  inducing  of  employees  to  unite  with  the  Union 
in  an  effort  to  subvert  the  system  of  employ- 
ment at  the  mine  by  concerted  breaches  of  the  con- 
tracts of  employment  known  to  be  in  force  there, 
not  to  mention  misrepresentation,  deceptive  state- 
ments, and  threats  of  pecuniary  loss  communicated 
by  Hughes  to  the  men  were  unlawful  and  malicious 
methods,  and  not  to  be  justified  as  a  fair  exercise 
of  the  right  to  increase  the  membership  of  the 
Union"  (p.  259). 

The  Court  therefore  sustained  an  injunction 
which  covered  (1)  interfering  with  employees  of 
the  plaintiff  for  the  purpose  of  unionizing  the  mine 
without  the  plaintiff's  consent,  by  representing  tliat 
the  employees  will  suffer  "some  loss  or  troulile" 
if  they  continue  to  work  for  the  jilaintiff;  (2)   in 


27 


aid  of  such  a  purpose  causini;-  auy  breach  of  con- 
tract; (3)  "knowiiiiily  and  wilfully  enticing  plain- 
tiff's employees,  present  or  future,  to  leave  the 
plaintiff's  service  on  the  ground  that  plaintiff  does 
not  rwognize  the  United  Mine  Workers  of  America 
or  runs  a  non-union  mine." 

In  so  far  as  the  case  holds  that  it  is  unlawful 
for  a  national  union  to  peacefully  persuade  the 
employees  of  a  non-union  em})loyer  to  strike  for 
recognition  of  the  nnion,  it  may  be  argued  that 
the  ease  is  in  favor  of  the  plaintiffs  in  the  case  at 
bar.  The  following  circumstances,  however,  weak- 
en the  force  of  the  case  as  a  precedent : 

(1)  The  decision,  not  resting  upon  any  consti- 
tutional or  other  Fedeml  principle,  is  not  binding 
upon  the  New  York  courts.  The  jurisdiction  of 
the  Federal  District  Court  rested  solely  upon  di- 
versity of  citizenshi]),  the  plaintiff  being  a  West 
Virginia  corporation  and  the  defendants  all  citizens 
of  Ohio.  The  District  Court  i-ested  its  conclusion 
solely  upon  an  interjiretation  of  West  Virginia 
law,  and  the  Supreme  Court  also  referi-ed  to  the 
fact  that  AVest  Virginia  law  recognized  an  action 
foi-  enticing  aAvay  em])loyees.  Indeed  the  AVest 
A'irginia  case  cited  by  the  Court  has  already  estab- 
lisJHMl  ilic  law  (if  that  state  in  accoj-d  willi  tlic 
tbH'ision  in  the  HilcJniKnt  ease. 

Tluu-kcr  ('(Mil  Co.  v.  Burke,  nil  AVest 
A'a-,  'j:>:i:  r^i  S.  K.,  l(;i.  in  this  ease 
a  <(>al  com])any  brought  a  bill  in  e(iuity 
alleging  that  the  defendants,  officials  of  the 
l^nitcil  Mine  WorkcM-s,  liad  wilfully,  wrong- 
fully and  nialici<Misly  pei-suaded  and  enticed 
the  plaint  itl's  cni|)l()yees  to  cease  woi-king 
f(M-  tlic  i»laiiitil'f.     In  tlu^  liisl  count  euiploy- 

'  UMMit  was  alleged  to  be  at   will,  in  the  otlu'i- 

i-ounts  cdiitiacts  of  cmjdoyment   foi-  a  tci-in 

I  «vei"e  alleged.     'Die  West    Viii:iiiia   Snpicnn* 


28 

Court  held  that  all  connts,  even  the  one 
which  did  not  allege  contracts,  stated  good 
causes  of  action. 

It  is  well  settled  in  Xew  York  that  a  decision  of 
the  Supreme  Court  in  a  case  in  which  jurisdiction 
rests  not  upon  a  Federal  question,  but  upon  mere 
diversity  of  citizenship,  is  not  a  precedent  binding 
upon  the  New  York  courts. 

"Upon  such  a  question  as  this,"  the  Court 
of  Appeals  has  said,  ''the  highest  court  of 
hte  Union  has  no  legal  pre-eminence  over 
any  of  the  courts  of  this  state.  We  listen 
to  the  views  of  its  judges  with  the  respect 
to  which  their  eminent  charactei"  and  high 
position  entitle  them,  but  in  inquiring  what 
the  law  of  tlsis  state  upon  a  particular  ques- 
tion is,  we  must  look  primarily  to  the  judg- 
ments of  our  own  tribunals,  and  when  we  find 
the  point  well  settled  liy  the  decision  of  the 
highest  state  court,  we  cannot  do  othei^dse 
than  follow  that  decision,  notwithstanding 
the  supreme  court  of  the  United  States  has 
taken  a  different  view  of  the  matter"  (Toirle 
V.  Forney,  14  N.  Y.,  423,  429.  Accord,  Mnr- 
firld  V.  Goodhue,  3  N.  Y.,  02.  71;  Lyon  v. 
Mitchell,  36  N.  Y.,  235;  Platf  v.  Bonsall, 
13fi  App.  Div.,  307;  Black,  Judicial  Prrrc- 
deufs,  Sec.  109). 

(2)  Even  as  merely  persuasive  authority,  the 
case  is  weakened  not  only  by  the  fact  that  three 
able  Justices  of  the  Court  dissented,  but  by  the 
fact  that  the  question  was  one  upon  which  there 
had  been  for  years  two  clearly  differentiated  judi- 
cial tendencies,  and  that  the  Cburt  relied  upon  and 
cited  as  precedents  exclusively  the  decisions  of 
state  courts  which  had  long  been  recognized  to  have 
been  directly  contrary  to  the  law  of  Xew  York. 

Aside  from  the  West  Virginia  case  which  I  have 
cited,   tlie  Court   relied  entirely  'upon  cases  from 


29 


New  Jersey  and  ^rassacluisetts.  Tlie  Court  rites, 
foi-  instance,  at  three  ditfei-ent  times  (pp.  2."):,',  254, 
1*5G),  the  ease  of  Hrennan  v.  I'nitcil  flaftfrs,  7.S 
N.  J.  L.,  729,  a  eji.se  decided  by  Mr.  .lusd:ice  Pitney 
before  he  came  to  the  Supreme  Court.  Tliis-  ease 
e.Kjjressly  cjists  dimbt  ui)on  tlie  decision  of  the  New 
York  Court  of  Apfteals  in  Xational  Protective 
Ass'n  V.  (Uniuiiini/  i  see  p.  739).  The  Courl  cites 
(p.  257)  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers 
Ass'n,  11  X.  ,1.  Eq.,  219,  in  whicli  the  Court  of 
Errors  and  A])peals  sustained  an  injunction 
against  enticinu  enii)h)yees,  not  under  contract  of 
service,  to  leave  tlie  plaintiff's  em])loynient,  a  case 
in  which  the  dissenting'  opinion  urges  that  tlie  Xew 
Jersey  rule  in  labor  disputes  be  abandonetl.  and 
the  "correct  rule''  as  set  forth  in  National  I'ro'cc- 
lire  Ass')i  v.  Ciunniinfj  he  adopted.  It  cites  L.  I). 
W'ilJciitf  <(•  Sons  Co.  V.  Drisroll,  200  Mass.,  110, 
a  caj^e  in  A\hi(li  it  was  held  that  a  union  eouhl  not 
use  a  system  of  lines  to  enforce  a  strike  for  liiglier- 
>va,t!:es  and  shorter  hours.  In  tliis  case  three  Jus- 
tices dissented,  citiu}?  in  su])})ort  of  their  disi^ent 
tile  lOllowinii  New  York  ciises;  liot/crs  v.  Krarls, 
17  X.  ^'.  Su])p..  2()1;  Burns  v.  Bricklai/ers^  Union, 
It  X.  V.  8u}tp.,  ."501:  Rri/nolfh  v.  Errrcit.  144  X. 
v..  IS!);  .1////.S-  v.  I'nlinJ  Slates  Prhiiinii  Co.,  99 
Ap]).  Div.,  (;05;  Fiirtsf  v.  Musical  Muiutil  Protn- 
lirc  Union,  95  X.   V.  Suj)]).,  155. 

It  has  always  been  recognized  that  the  law  <;!' 
Xew  Ydik  (til  labor  (piesfions  is  more  advanccil 
than  the  law  of  Massachusetts  oi*  Xew  Jersey. 
Thus  a  strike  lor  a  closed  shoj)  is  illegal  in  Massa- 
^•husetts  \  Plant  v.  Woods,  17(1  Ma.ss.,  492)  and  in 
Xew  Jersey  (  h'mhii/  v.  Inilrtl  Associal  io)!,  70  X.  4. 
I...  407;  75  All..  712  i.  It  is  lawful  in  Xew  Ynvk 
{Kissani  v.  L  nilcd  Slafes  Printintf  Co..  P.M.)  N.  ^'., 
70).  Again,  t(»  persuade  (■:i:])l(»yer's  to  strike  is  nn- 
lauriil    ill    Xew    Jeisev     [.lonas    dhi.ss    Co.    \.    Glass 


30 

BottJe  Blowers  Ass'n,  11  N.  J.  Eq.,  219) .  It  is  law- 
ful in  New  York  {Mills  v.  United  States  Printing 
Co.,  99  App.  Div.,  605).  A  boycott  even  within  the 
industry,  is  unlawful  in  Masisachusetts  {Pickett  v. 
Walsh,  192  Mass.,  572),  and  any  boycott  of  what- 
soever description  is  illegal  in  Xew  Jersey  {Martin 
V.  McFall,  65  N.  J.  Eq.,  91;  55  Atl.,  465).  A  boy- 
cott within  the  industry  is  not  illegal  in  Kew  York 
{Bossert  v.  Dhmj,  221  N.  Y.,  342). 

The  fact  that  the  Supreme  Court  of  the  United 
States  has  followed  in  itv«i  decisions  cases  which 
have  long  been  recognized  to  be  contraiy  to  the 
New  York  law  is  surely  no  reason  why  the  New 
York  courts  should  now  abandon  their  well-settled 
doctrines  and  adopt  the  doctrines  of  Massachusetts 
and  New  Jersey. 

(3)  Moreover,  the  Supreme  Oourt  of  the  United 
States,  in  a  case  involving,  not  West  Virginia  law, 
but  New  York  law,  has  itself  recognized  that  the 
rule  in  New  York  was  different,  and  has  sustained 
trade  union  activities  which  would  certainly  be 
held  uulawful  under  Xew  Jersey  and  Massachusetts 
precedents.  In  Paine  Lumhcr  Co.  v.  Yr«7,  244  U. 
S.,  459,  the  state  of  facts  was  virtually  the  same 
as  in  Bossert  v.  Dhuif.  The  Ignited  Brotherliood 
of  Carpenters'  rules  requiring  meml)ers  to  refrain 
from  working  with  non-union  men  or  non-union 
trim  were  attacked  in  bills  in  equity  in  the  Eederal 
Courts.  A  majority  of  the  Court  lield  (Justices 
Pitney,  McKenna,  Van  Devanter  and  McReynolds 
diBsenting)  (1)  that  the  activities  could  not  be 
restrained  at  the  suit  of  a  private  individual  under 
tlie  Sliei'tnan  Law;  (2)  that  they  did  not  violate 
tlie  conniion  law  of  New  York.  On  this  latter  point 
tlie  Court  said  : 

'*As  this  court  is  not  the  final  authority 
concerning  the  laws  of  New  York  we  say  hut 


31 

a  word  about  them.  We  shall  not  believe 
that  the  ordinary  action  of  a  labor  union 
can  be  made  the  ijronnd  of  an  injunction 
under  thos-^e  law>«  nntil  we  are  so  instructed 
by  the  New  York  Court  of  Appeals.  National 
Protective  Association  of  Steam  Fitters  & 
Helpers  v.  Cnnuuin.u-,  170  N.  Y.  315.  Cer- 
tainly the  conduct  conijilaincd  of  has  no  ten- 
dency to  produce  a  monopoly  of  manufacture 
or  biuldiuii-  since  the  more  successful  it  is 
the  more  competitors  are  iutro<lncefl  into 
the  trade*'    (p.  471). 

(4)  Finally,  the  Ilifchwau  case  is  distinguish- 
able from  the  New  York  cases,  and  from  the  case 
at  bar,  because  the  record  did  not  contain  any  find- 
injis  of  fact  connecting  the  policy  of  unionization 
with  the  cenei-al  luirposes  of  economic  betterment 
which  the  uniou  entertained.  It  will  be  recalled 
that  Sfuch  a  tindino-  of  fact  was  the  basis  of  the 
decisions  in  the  Bosseri  and  A'/.s-.srnn  cases. 

C. 

The  Principles  Established  in  the  New  York  Cases. 

An  examination  of  the  New  Yoi-k  cases,  indicates 
that  where  such  illegal  elements  as  fraud,  force, 
threat  of  force,  and  libel  are  eliminatctl,  the  Court 
examines  into  the  "intent"  with  which  the  acts 
were  done,  and  if  it  concludes  that  tlie  ])rinuiry 
intent  was  injury  to  the  plaintiff,  it  will  enjoin 
the  conduct,  whereas?,  if  it  coTiclndes  that  the  ]u-i- 
marv  intent  is  benefit  to  niembei-s  of  the  union, 
it  will  ileny  an  injunction.  Tn  Ciirrnu  v.  (Inh-ti 
the  *"]Uirpose''  of  the  combination  was  said  to  be 
to  deprive  non-union  men  of  em]doyment,  and  this 
]>nrpose  was  said  to  render  the  combination  illeirnl 
des])ite  a  ])os-sil)le  remote  object  of  economic  bettei- 
meut   (152  N.  Y..  :V.\.  '}'.)).     In  Xdfioud}  rrofrrfire 


32 


Ass'n  V.  Cumming,  Chief  Judge  Parker  cousideved 
that  the  only  motive  of  the  defendants  was  "to 
benefit  their  members  by  securing  their  employ- 
ment/' while  Judge  Vann,  dissenting,  believed  that 
"the  object  of  the  defendants  w^as  not  to  get  higher 
wages,  shorter  hoursi  or  better  terms  for  themselves, 
but  to  prevent  others  from  following  their  lawful 
calling."  In  Jacobs  v.  Cohen  the  closed  shop  agree- 
ment was  sustained  because  its  object  was  economic 
betterment,  and  injury  to  non-union  workmen  was 
considered  incidental  (183  X.  Y.,  207),  In  Kissant 
v.  United  States  Printing  Co.,  a  closed  shop  agree- 
ment was  likewise  sustained,  on  a  finding  of  fact 
that  "the  agreement  was  not  entered  into  for  the 
purpose  of  gratifying  malice  against  the  non-union 
employees  of  the  printing  company  or  of  inflicting 
injury  upon  thenv'  (199  N.  Y.,  76).  In  the  Bosscrt 
case  it  will  be  recalled  that  Justice  Blackmar  held 
strikes  called  against  builders  who  used  the  plain- 
tiff's non-union  trim  to  be  illegal,  on  the  ground 
that  the  "purpose"  was  to  injure  the  plaintiff;  that 
Justice  Crane  held  virtually  the  same  conduct  to 
be  legal,  because  the  "purpose''  was  to  im])i'ove  the 
conditions  of  union  labor;  that  Justice  Putnam 
again  held  that  such  conduct  was  illegal  because 
the  injury  to  the  plaintiff  w^as  the  "dii'ect  result 
souglit"  and  the  economic  betterment  remote  and 
incidental;  and  that  finally  the  Court  of  Appeals 
reversed  the  decision,  granting  an  injunction  on  the 
ground  that  "it  was  not  the  intent  and  pui'pose 
of  the  defendants  in  this  case  to  injure  the  good 
mil  or  business  of  tlie  plaintiffs  as  individuals 
or  of  non-union  manufacturers  generally."  And 
lastly,  in  Anburn  Drai/ing  Co.  v.  WardcU,  the  gen- 
eral boycott  through  the  Central  Labor  Union  was 
held  unlawi'ul,  on  a  finding  of  fact  that  "the  pri- 
mary purpose  sought  by  the  defendants  was  the 
injury  and  destruction  of  plaintiff's  business,"  and 


33 


that  tlio  "uKiiiiate  hojie  of  iKMiotit  to  oriiaiiizcd 
lalior"  was  too  i-omote  to  l»o  iiiatcrial  ( '221  X.  V.,  1 ) . 

ProptM-Iv  uii(l(M-slo(i(l.  these  jijejicral  i>i-iiici])los 
correctly  stute  the  jj^roiiiuls  of  decision  in  the  Xew 
York  courts.  But  they  are  liable  to  niisc-onstruction 
if  considered  apart  from  the  facts  of  the  particular 
cases,  i^uppose  a  siiii]»l('  case  of  a  strike  to  enforce 
a  closed  union  shop.  It  cannot  be  that  the  lawful- 
ness of  such  a  strike  can  de})end  upon  whether  the 
trial  con  It  was  of  opinion  that  the  "purpose"  was 
economic  betterment,  or  whether  it  thought  the 
])ur])ose  was  injui-v  to  non-union  employees. 

A  ])urely  i)sycholooical  inquiry  into  motives  can- 
not be  the  SK^le  fn*ound  of  decision.  If  it  w(M(\  the 
law  would  be  in  an  intolerable  state  of  uncertainty, 
for  it  wowld  depend  in  each  case  upon  the  trial 
judiic's  intuition  as  to  the  state  of  the  defendant's 
mind.  lieanufi  in  mind  tlie  facts  of  the  New  York 
cases  previously  sununarized.  a  slight  analytical 
digression  will  indicate  tlie  ti-uc  principle  of  the 
New  Yoik  cases. 

Assume  tliat  a  natumal  union  sets  ont.  by  tlie 
usual  mctliods  of  peaceful  ]ici'suasion,  picketing", 
boycotts,  and  public  ajipeals.  to  induce  a  pju'ticubir 
employei-  to  uiiioni/.e  liis  sho]).  Any  ])art  iculai-  act 
in  the  cour.»-e  of  this  endeavoi*  will  have  a  whole 
hiei-archy  of  ]>ur])oses  and  intentions  behind  it.  An 
oi-ganizer,  for  instance,  tells  a  (dothing  contractoi- 
that  lie  will  call  out  liis  employees  if  the  coiit  i-actoi- 
continues  to  work  for  the  plaintiff.  Tlis  inunediate 
tactical  objective  is  no  doubt  to  intli<-t  a  <-ei-tain 
kind  i.l'  peciiiiiai-y  loss  on  the  jilahititf.  I'lit  bejiiml 
this  tactical  objective  is  the  larger  strategic  o])jec- 
tive  of  unionization.  And  behind  this  strategic 
oI:jective  is  the  ultimate  juirpose,  the  cdiisd  cfiiisiiiis 
of  the  whole  nndert ak ing.  namely.  e<oii(»mic  lietlei- 
ment  of  the  cmiiloyees. 


34 


Now  to  saj  that  the  intention  of  the  union  was 
not  to  better  its  condition,  but  to  injure  the  plain- 
tiff, is  to  use  the  word  'intention"'  in  two  different 
senses.  It  is  as  if,  as  Prof.  Jeremiah  Smith  has 
pointed  out  (20  Harv.  Law  Kev.,  253,  257),  a  repub- 
lican who  lulled  the  king  were  to  assert  that  his 
intentions  was  not  to  kill  the  king  but  to  benefit 
the  country. 

It  is  of  course  true  that  certain  kinds  of  injury 
cannot  be  excused  by  proving  an  ultimate  beneficial 
motive.  The  best  of  motives  will  not  excuse  an 
assault  and  battery,  or  a  trespass  to  realty,  or  a 
conversion  of  personal  pi'oi^erty,  or  a  libel  or  de- 
ceit. The  explanation  of  the  New  Jersey  cases  is 
that  they  have  conceived  that  the  intangible  in- 
terest which  a  business  man  has  in  wliaf  the  Court 
calls  the  free  flow  of  labor  is  so  highly  protected 
by  law  that  any  intentional  injury  to  this  interest, 
even  by  mere  persuasion,  is  unlawful,  however 
laudable  the  ultimate  motive  of  the  injury.  Thus 
the  New  Jersey  Court  of  EiTors  and  Appeals  en- 
joined the  defendants  from  persuading  the  plain- 
tiff's employees  to  strike,  without  any  qualification 
as  to  illegal  purpose  or  illegal  means  (Joua.s  Glass 
Co.  V.  Glass  Bottle  Blowers  Ass'n,  77  X.  J.  Eq., 
219).  The  majority  opinion  in  the  Hitchman  case, 
being  written  by  a  Justice  whose  judicial  experi- 
ence was  attained  in  New  Jersey,  and  being  mod- 
eled on  the  New  Jersey  cases,  proceeds  on  some- 
what the  same  ground.  The  Court  conceives  that 
any  intentional  injuiw  to  this  intangible  property 
right  is  unlawful  unless  some  specific  and  recog- 
nized justification  can  be  found,  just  as  an  injury 
to  the  person  is  unlawful  unless  justified  as  an  act 
of  self-defense,  or  of  official  authority. 

The  New  York  courts  look  at  the  matter  differ- 
ently. They  consider,  in  succession,  the  whole  heir- 
archy  of  purposes  and  intentions  which  motivate 


35 


the  incidents  of  a  strike.  First  tliev  look  to  the 
ultimate  purpose.  If  that  purpose  is  improper, 
if  for  instance  it  spring's  from  mere  personal  ill- 
will  (see  Tuttle  v.  Biick^  107  Minn.,  145)  or  from 
a  desire  to  extort  money  for  the  private  enrichment 
of  the  labor  organizers,  the  Courts  will  of  course 
disapprove  it  {People  v.  Barondess,  IG  N.  Y.  Supp., 
436;  133  N.  Y.,  649),  and  all  acts  in  pursuance  of 
the  illegal  object,  though  in  themselves  lawful,  will 
be  enjoined.  But  if  the  ultimate  purpose  relates 
to  the  economic  betterment  of  the  members  of  the 
union,  it  is  approved  by  the  courts,  and  all  acts  in 
furtherance  thereof,  not  in  themselves  illegal,  are 
permitted. 

Assuming,  then,  that  the  ultimate  purpose  of  the 
union  is  one  of  economic  betterment,  the  court  looks 
next  to  the  larger  strategic  objective,  namely,  the 
unionization  of  the  plaintiff's  plant.  If  this  ob- 
jective were  of  itself  unlawful,  it  is  obvious  that 
no  beneficent  motive  would  cure  the  illegality.  But 
it  is  clear  in  Xew  York  that  even  closed  shop  union- 
ization is  not  in  and  of  itself  illegal.  It  is  admitted 
that  a  closed  shop  inflicts  pecuniary  harm  upon 
some  non-union  men.  Hence  if  it  could  be  shown 
that  the  policy  were  motivated  by  personal  ill-will 
toward  tliese  non-union  men,  it  would  be  illegal. 
But  if  it  is  shown  tliat  the  closed  sho])  was  desired 
only  because  it  tended  to  strengthen  the  union  in 
its  struggle  for  economic  betterment,  and  if  tlie 
actual  interrelation  between  unionization  and  im- 
provement of  wag«  and  working  conditions!  is 
shown,  the  court  must  necessarily  find  that  the 
policy  is  lawful. 

The  court  then  passes  from  the  strategic  objective 
of  unionization  to  the  tactical  means  employed  to 
secure  unionization.  Here  again  it  is  obvious  that 
if  any  means  are  employed  whicli  are  in  and  of 
themselves  toj-tious.  the  fact  thar  they  arc  nie;iiis 


36 


toward  a  lawful  strategic  objective,  and  are  done 
with,  a  beneficent  ultimate  aim,  is  immaterial. 
Violence,  fraud,  defamation  are  illegal,  regardless 
of  motive.  But  to  persuade  employees  not  to  work 
for  a  non-union  employer,  or  not  to  work  on  non- 
union material,  is  not  of  itself  unlawful.  It  is  true 
that  such  persuasion  inflicts,  and  intentionally  in- 
flicts, temporary  injury  upon  the  non-union  employ- 
er. If  ill-will  toward  the  employer,  or  some  other 
corrupt  and  dishonest  motive,  where  the  causa  cans- 
ans  of  the  injury,  it  would  perhaps  be  actionable. 
But  if  the  purpose  of  unionization  and  the  ultimate 
purpose  of  economic  betterment  are  admitted,  such 
acts  are  not  unlawful.  Xor  is  it  good  la*w  to  say 
that  the  "real  intent'*  or  "the  immediate  matter  in 
hand''  was  injury  to  the  i)laintiff,  the  economic 
benefits  being  merely  remote.  If  the  injury  was 
desired  merely  because  and  in  so  far  as  it  was  a 
means  of  attaining  the  ultimate  objectives,  it  was 
lawful.  Only  an  improper  or  dishonest  ulterior 
motive  could  render  it  actionable. 

In  deteiinining  whether  tlie  immediate  tactical 
means  are  lawful,  the  courts  look  naturally  to  the 
usual  categories  of  tort.  But  the  development  of 
industiT  and  organization,  and  the  close  interde- 
pendence of  business,  has  led  the  courts  in  recent 
times  to  recognize  the  one  class  of  means,  although 
not  invohing  either  violence,  fraud  or  defan)ation, 
is  illegal,  for  whatever  purpose  it  is  used.  The 
Tinion  may  not  through  the  use  of  economic  coer- 
cion iuv^titute  a  boycott  which  involves  other  in- 
dustries not  interested  in  or  concerned  with  the 
dispute.  Aiihuru  Drai/inr/  Co.  v.  ^Yar(lr]l  illus- 
trates forcibly  the  need  of  such  a  rule.  It  is  against 
public  policy  to  permit  a  union  to  induce  oi-ga- 
nized  employees  in  unrelated  industries  to  threaten 
strikes  nnless  their  employers  boycott  the  plaintiff. 
The   power   is  too   irresistible,   and    the   injury    to 


37 


s>ocietj  too  great.  The  basis  of  the  decision  in  the 
Wardcll  ease  was  not  that  the  ultimate  purpose  of 
the  defendants  was  improper.  It  was  conceded 
that  their  ultimate  motive  was  economic  better- 
ment, not  personal  ill-will  or  corruption.  It  was 
not  because  their  strategic  objective  of  unioniza- 
tion was  illegal.  The  case  does  not  purport  to  over- 
rule the  Bossert  case.  The  basis  of  the  decision  is 
that  the  means  used,  a  coercive  boycott  which 
reaches  out  into  unrelated  industries  outside  the 
sphere  of  interest  in  the  controversy,  is  contrary 
to  public  policy  and  illegal.  It  is  illegal,  however 
laudable  the  ultimate  aims  which  inspired  it. 

The  facts  in  the  case  at  bar  present  no  features 
?<uch  as  those  involved  in  the  WardeU  case. 


D. 

Conclusion. 

The  lawfulness  of  a  particular  course  of  labor 
union  conduct  depends,  then  (in  the  absence  of 
illegal  means)  upon  two  questions:  (1)  Was  the 
union  actuated  by  a  legitimate  motive  of  bettering 
the  economic  condition  of  its  members  and  of  the 
trade,  and  (2)  did  the  acts  which  are  complained 
of  bear  a  direct  relation,  as  reasonable  means, 
toward  the  achievement  of  this  lawful  end?  More 
concretely,  has  a  national  union  a  legitimate  in- 
terest in  the  conditions  prevailing  in  a  ]»articular 
shop,  and  is  unionization  of  that  shop  a  reasonable 
means  of  vindicatinii  that  interest? 


38 
PART  SECOND. 

Scope  and  Admissibility  of  Evidence. 

Questions  relating  to  e\ddence  bearing  upon  tlie 
particular  incidents  of  the  strike  may  be  dealt  with 
as  they  arise  at  the  trial,  for  they  present  no 
feature  of  particular  novelty.  But  upon  the  cen- 
tral issue  of  the  case,  the  Coui-t  will  be  called  upon 
to  deal  with  questions'  of  economic  fact  of  a  kind 
not  frequently  involved  in  ordinary  litigation,  and 
which  present  problems  in  the  law  of  evidence 
which  merit  careful  investigation.  We  will  con- 
sider, jirst,  the  pleadings  and  the  preliminaiy  in- 
junction; second,  the  issues  of  fact  which  the 
pleadingsi  raise;  third,  tlie  general  character  of 
the  evidentiary  facts  relevant  to  these  issues; 
fourth,  the  admissibility  of  these  facts  under  the 
decisions  and  the  rules  of  evidence,  and  fifth,  the 
methods  of  proving  these  facts. 

A. 

The   Pleadings  and   the   Preliminary   Injunction. 

Omitting,  for  tlie  juirposes  of  this  memorandum,, 
tiie  allegations  eoncei-ning  illegal  means,  such  as 
physical  violence,  threats  of  violence,  fiaud,  etc., 
the  complaint  may  be  fairly  summarized  as  follows : 

The  plaintiffs  are  conducting  a  Tuisiness  which 
has  a  valuable  good  will  and  have  established  valu- 
able businesiii  connections  and  relations  throughout 
the  countiy.  The  defendants  persuaded  a  number 
of  workers  in  the  plaintiff's  employ  to  cease  work- 
ing in  order  to  compel  the  ])Iaintiff  to  ''recognize 
and  deal  with  the  said  Amalgamated  Association 
as  the  only  organization  which  could  deal  with 
]daintiffs  as  repre  senting  any  of  the  emi)loyees  of 
plaintiffs.*' tmd  coiisjiired  togetlior  "for  the  purpose 


39 


of  compelling  all  of  the  workers  empToj^ed  by  the 
plaintiffs  to  organize  under  the  Amalgamated 
Clothing  Workers  of  America."  The  defendants 
threatened  that  if  the  plaintiff  did  not  "compel 
their  workers  to  organize  under  the  Amalgamated" 
they  would  "drive  the  iilaintiffs  out  of  business", 
would  compel  tlieir  employees  to  quit  their  employ, 
and  would  exclude  them  through  their  united  effort 
and  influence  from  the  markets  in  which  the  plain- 
tiffs had  been  accustomed  to  trade."  For  the  pur- 
pose of  injuring  the  plaintiff's  business,  they  have 
threatened  outside  contractors  who  were  manufac- 
turing clothing  for  the  plaintiffs,  that  if  they  con- 
tinued to  work  for  the  plaintiflFs,  their  business  will 
be  ruined  through  the  concerted  efforts  of  the  de- 
fendants, and  in  this  way  they  have  caused  some 
of  these  contractors  to  discontinue  working  for  the 
plaintiffs.  They  have  "maliciously  endeavored  to 
induce  employees  organized  under  the  I"''nited  Gar- 
ment Workers  Union  to  cause  a  breach  of  the  con- 
tract betw^een  the  plaintiffs  and  the  United  Gar- 
ment Workers.  They  have  circulated  printed  mat- 
ter charging  falsely  that  the  plaintiffs  wei*e  opposed 
to  organized  labor. 

The  answers  in  general  ])ut  into  issue  every  ma- 
terial allegation  of  the  complaint,  admitting  only 
the  preliminaiy  allegations  as  to  the  plaintiff's 
business  and  the  official  positions  held  by  the  de- 
fendants, the  organization  of  the  Amalgamated, 
etc.  In  the  case  of  the  defendants  sued  in  their 
official  capacity,  there  are  affirmative  allegations 
in  the  answers  that  the  pui"pose  of  the  Amalga- 
mated is  "im]u'Ove(l  conditions,  more  pay,  increased 
freedom,  and  enlarged  independence,"  that  it  recog- 
nizes the  ojjcn  shop,  and  has  worked  for  increased 
production,  and  the  ]ieaceful  settlement  of  indus- 
trial disputes.  The  answers  also  allege  affirma- 
tively  that    the   plnintiffs   are   not    in   good    faith 


40 


supporters  of  any    union,  but  are  opponents  of 
unionism. 

The  preliminary  injunction  (aside  from  acts 
considered  tortious  in  themselves)  enjoins  doing 
any  act  "for  the  purpose  of  preventing  any  persons 
who  are  or  who  may  hereafter  be  in  plaintiffs'  em- 
ployment from  continuing  therein,  or  for  the  pur- 
pose of  preventing  or  interfering  with  others  enter- 
ing said  employ."  They  are  enjoined  from  dissem- 
inating any  statements  tO'  the  effect  that  plaintiffs 
are  opposed  to  organized  labor.  They  are  also 
enjoined  from  persuading  employees  to  violate  or 
"cause  the  abrogation  or  violation"  of  the  contract 
between  the  plaintiffs  and  the  United  Garment 
Workers.  They  are  enjoined  from  threatening 
harm  of  any  kind  to  any  person  who  does  Itusiness 
with  the  plaintiffs. 

B. 

The  Issues  Raised  in  the  Pleadings. 

The  pleadings  raise,  under  the  New  York  law, 
two  primaiy  issues  of  fact : 

First,  what  was  the  ultimate  purpose  of  the  de- 
fendants throughout  the  course  of  conduct  com- 
plained of.  The  complaint  alleges  their  "purpose" 
was  to  compel  organization  under  the  Amalga- 
mated. The  answers  in  effect  deny  that  this  was 
the  purpose,  and  allege  that  the  real  purpose  was 
the  economic  betterment  of  the  members  of  the 
union.  The  Court,  in  its  opinion  modifying  the 
injunction,  recognized  that  this  was  the  gist  of 
the  case: 

"The  defendants  may  properly  be  re- 
strained from  doing  any  act  or  thing  for 
the  'purpose'  of  preventing  any  person  from 


41 

continuing  in  the  employ  of  the  plaintiffs  or 
from  entering-  their  employ  as  contained  in 
the  first  paragraph.  The  members  of  the 
A.  O.  W.  of  A.  may  resort  to  legal  means 
for  the  purpose  of  improving  their  condi- 
tions, but  they  cannot  combine  or  act  for 
the  purpose  of  injuring  someone  else." 

And  the  language  of  the  ]^ew  York  Cour-t  of 
Appeals  in  a  long  series  of  cases  is  to  the  same 
effect  (see  Part  First,  siipra^  pp.  5  to  22). 

The  second  primary  issue  raised  by  the  pleadings 
is  whether  the  immediate  objective  of  enforcing 
collective  bargaining  in  the  plaintiff's  factoiy  was 
a  means  reasonably  adapted  toward  securing  these 
ultimate  objects  of  the  uutou. 

It  was  this  issue  of  fact  which  proved  decisive 
against  the  union  in  Hitchmnn  Coal  &  Col'e  Co. 
V.  Mitchell,  245  U.  S.,  220.  In  that  cas-e  the  Court 
in  effect  concefled  that  the  employees  of  the  plain- 
tiff coal  company  might  strike  for  recognition  (pp. 
252,  253),  but  it  considered  that  a  union  repre- 
senting miners  in  other  states  had  no  legitimate 
interest  in  unionizing  the  plaintiff's  mine.  As 
Judge  Learned  Hand,  s]ieaking  for  the  Circuit 
Court  of  Appeals  in  this  Circuit,  has  put  it  in 
discussing  the  Hitchman  case,  ''the  illegality  de- 
l^ended  upon  the  supposed  meddlesome  character 
of  the  intervention"  {Triangle  Film  Corp.  v.  Art- 
i-raft  Pictures  Corp.,  250  Fed.,  081,  082).  On  the 
(ither  hand,  in  Bossert  v.  Dhuij,  221  X.  Y.,  312.  in 
which  the  action  of  the  labor  union  in  trying  to 
unionize  the  plaintiff's  shop  was  sustained,  the 
Court,  found  as  a  fact  "that  it  conduces  to  the  bet- 
terment of  the  condition  of  the  members  of  said 
Ignited  Brotherhood  not  to  install  the  mill  products 
of  plaintiff  in  buildings,"  and  that  "the  more  mills 
that  are  unionized  the  more  chance  have  the  out- 
side and  inside  carpenters  of  said  United  Brother- 


42 


hood  to  obtain  work  at  union  wages   and  other 
union  conditions." 

Logically  these  two  issues — the  ultimate  purpose 
of  the  union  and  the  relevance  of  collective  bargain- 
ing as  a  means  toward  this  end — are  distinct.  But, 
practically,  they  may  be  considered  together,  for 
the  evidentiary  facts  relevant  to  one  issue  will  in 
general  be  relevant  to  the  other. 


C. 

What  Facts  Are  Relevant  to  These  Issues? 

Economic  questions  such  as  are  involved  in  these 
issues  are  often  left  to  mere  guesswork  or  intuition  ; 
but  clearly  they  are  susceptible  of  proof,  in  the 
same  manner  as  any  other  issue  O'f  fact.  The 
United  States  Supreme  Court,  in  the  Hitchman 
case,  concluded  that  labor  union  officials  represent- 
ing miners  in  Indiana,  Illinois  and  Ohio,  had  no 
legitimate  interest  in  the  unionization  of  a  mine  in 
West  Virginia,  and  hence  that  their  purpose  must 
have  been  to  injure  the  West  Virginia  mine,  or,  as 
Judge  Learned  Hand  put  it,  that  tliey  were  mere 
intermeddlers.  Tlie  Court's  decision  upon  this 
point  seems  to  have  been  derived  from  its  own  a 
priori  conception  as  to  the  economic  issue  involved. 
'No  evidence  upon  the  subject  appears  to  have  been 
presented.  It  is  the  ])urpose  of  counsel  in  this  case 
to  present,  as  part  of  the  evidence  in  the  case,  in- 
controvertible proof  that  tlie  Amalgamated  officers, 
as  i-epresentatives  of  clothing  workers  in  all  the 
great  clothing  centers  of  tlie  United  States,  did  in 
fact  have  a  direct  and  legitimate  interest  in  the 
labor  standards  prevailing  in  Michaels,  Stern  & 
Company's  factory,  and  in  securing  for  the  em- 
]>loyees  of  Michaels,  Stern  &:  Company  industrial 


43 


machineiy  of  arbitration  and  collective  baigain- 
ing-  which  would  preserve  those  standards  in  the 
future.  It  is-  their  purpose  to  prove  this  inter- 
est by  laying-  before  the  Court  in  comprehensive 
and  scientifically  arranged  form  the  economic  facts 
prevailing  in  the  clothing  industiy  whicli  prove 
that  non-union  conditions  in  a  particular  shop  tend 
to  undermine  the  standards  and  economic  ideals  of 
the  industry.  They  intend  to  establish,  not  by  the- 
oretical abstraction,  but  by  proven  industrial  fact, 
the  direct  and  demonstrable  connection  between  ex- 
tension of  the  machinery  of  collective  bargaining, 
of  arbitration,  and  of  labor  standards,  wliich  the 
Amalgamated  is  seeking  to  put  into  effect,  and  the 
welfare  and  progress  not  only  of  the  union  member- 
ship, but  of  the  industiy  as  a  whole. 

The  method  which  they  propose  to  follow  is  the 
method  whicli,  in  a  striking  case  in  an  analogous 
field  of  the  law,  has  received  the  emphatic  approval 
of  the  New  York  Court  of  Appeals.  The  question 
was  as  to  the  constitutionality  of  a  law  proliibiting 
iiiglit  work  of  women  in  factories.  When  such  a 
law  fii-st  came  befoi'e  the  Court,  the  issues  weie 
argued  upon  abstract  prhici]des  of  law,  and  the 
Court  concluded,  uj)oii  a  priori  reasoning,  that  the 
purpose  of  the  law  Isore  no  relation  to  the  health 
and  welfare  of  the  community,  but  that  it  was 
solely  an  attempt  of  the  Legislature  to  exchule  a 
class  of  citizens  from  a  lawful  occupation  [People 
V.  WilUams,  180  X.  Y.,  131).  Eight  years  Inter 
virtually  tlie  same  law  came  before  the  Court  (Peo- 
ple V.  Charles  Selureiuler  Press,  214  X.  Y.,  395)- 
This  time  counsel  submitted  to  the  Court  an  over- 
whelming mass  of  testimony  bearing  on  the  evil 
relation  between  night  work  and  the  health  of  the 
race.  The  Conrt  recognized  that  what  it  once 
thought  to  be  a  question  of  law  was  in  truth  a 
complex  question  of  industrial  an<l  scientific  fact, 
and  in  view  of  the  conclnsive  character  of  the  proven 


4A 


fact,  it  sustained  the  law.  Tlie  following;  extract 
from  the  Court's  discussion  of  its  previous  decision 
in  People  v.  Williams  is  especially'  illuminating: 

"While  theoretically  we  may  have  been 
able  to  take  judicial  notice  of  some  of  the 
facts  and  of  some  of  the  legislation  now 
called  to  our  attention  as  sustaining  the  be- 
lief and  opinion  that  night  work  in  factories 
is  AA^idely  and  substantiall}"  injurious  to  the 
health  of  women,  actually  very  few  of  these 
facts  were  called  to  our  attention,  and  the 
argument  to  uphold  the  law  on  tliat  ground 
was  brief  and  inconsequential. 

Esftecially  and  necessarily  was  there  lack- 
ing evidence  of  the  extent  to  which  during 
the  intervening  years  the  o])inion  and  belief 
haA^e  spread  and  strengthened  that  such 
night  work  isi  injurious  tO'  women :  of  the 
laws,  as  indicating  such  belief,  since  adopted 
by  several  of  our  own  states  and  by  largp 
European  countries,  and  the  report  made 
to  the  legislature  by  its  own  agency,  the  fac- 
tory investigating  commission,  liased  on  in- 
vesti<i'ation  of  actual  conditions  and  study 
of  scientific  and  medical  opinion  tliat  night 
work  by  women  in  factories  is  generally  in- 
jurious and  ought  to  be  prohibited''  (\).  411 ). 

It  is  the  purpose  of  counsel  to  ]nrrsue  the  same 
course  in  the  case  at  bar. 

This  is  not  the  place  to  set  forth  in  detail  the 
evi.dence  bearing  upon  this  issue  which  the  defend- 
ants will  present.     Briefly,  it  will  be  shown  : 

(a)  That  the  Amalgamated,  through  its  system 
of  collective  bnrgaining.  arbitration  and  Avnge  and 
production  standards,  has  in  the  joast  been  the 
means  of  secuiing  important  benefits  to  tlie  un'on 
membership  through  advanced  wages,  shorter 
hours,  amelioration  of  the  vicious  "sweating"  sys- 
tem, regnlarization  of  work,  and  prevention  of  dis- 
putes and  strikes.. 


45 


(b)  That  while  achieving  these  gains  for  its 
membership,  the  Amalgamated  has  throughout 
been  mindful  of  its  obligations  to  the  industry  and 
to  the  public.  It  has  used  its  power,  in  co-operation 
with  the  employers,  to  restrain  such  of  its  members 
as  might  be  inclined  to  take  advantage  of  competi- 
tive conditions  to  make  unwise  demands,  and  it 
has  made  an  honest  and  determined  effort  to  in- 
crease the  productivity^  of  its  labor. 

(c)  That  the  clothing  markets  of  the  United 
States  are  so  closelv  interrelated,  by  virtue  of  the 
competitive  state  of  the  trade,  that  the  membership 
of  the  union,  although  in  large  part  employed  in 
other  cities  than  Rochester,  has  a  direct  and  vital 
interest  in  the  labor  standards  prevailing  in  the 
plaintiff's  factory. 

These  claims  will  be  substantiated  not  only  V>y 
theoretical  argument,  but  also  by  the  opinions  of 
trade  unionists,  manufacturers,  specialists  in  in- 
dustrial relations,  and  Government  officials  who 
have  had  oflftcial  experience  with  the  workings  of 
the  Amalgamated,  and  by  the  official  and  indis- 
])utable  records  and  statistics  of  the  industry, 

D. 

Admissibility   of  Such    Evidence. 

The  admissibility  of  economic  data  of  this  sort 
Tests  ujton  recognized  principles  of  the  law  of  evi- 
dence. 

1.  It  is  adniivssiblii  to  show  the  purpose  and 
<:haracter  of  the  combination. 

If  the  defendants  were  under  indictment  foi-  an 
alleged  unlawful  conspiracy,  upon  familiar  prin- 
<cii)les  all  their  ads  and  declarations  in  the  coiir.se 


4G 


of  and  in  fiirtberance  of  tin  alleged  conspiracy 
could  be  shown  by  the  Goyerunient  as  tending-  to 
establish  the  unlawful  purpose  [People  v.  Becker, 
215  X.  Y.,  126,  148)  : 

''When  a  conspiracy  is  shown,  or  evidence 
on  the  subject  given  suf&cient  for  the  jury, 
then  the  actsi  and  declarations  of  the  con- 
spirator's, in  furtherance  of  its  pur-pose  and 
object^  are  competent,  and  in  a  case  like  this 
it  is  not  necessary,  in  order  to  make  such 
proof  competent,  that  the  conspiracy  should 
be  charged  in  the  indictment/' 

Accord : 

People  V.  McKanc,  143  X.  Y.,  455,  470. 
People  V.  Peckens,  153  X.  Y.,  576. 
People  V.  Van  Tassel,  156  X.  Y.,  561. 

And  apart  from  any  conspiracy,  where  the  motive 
or  intent  of  the  defendants  is  directly  in  issue,  not 
only  declarations,  but  previous  and  uni^elated  acts 
of  the  defendants  may  be  shown,  in  so  far  as  they 
throw  light  on  their  intent  in  the  particular  trans- 
action at  issue  (People  v.  Molineux,  168  X.  Y.^ 
264,  297;  People  v.  Thau,  219  X.  Y.,  39).  Indeed, 
to  show  a  common  design  or  course  of  conduct, 
a  whole  series  of  similar  acts  may  be  shown 
{People  v.  Duffy,  212  X.  Y.,  57). 

Evidence  of  this  character  is  familiar  In  a  class 
r)f  cases  quite  similar  to  the  case  at  bar,  namely, 
suits  under  the  anti-trust  laws.  In  Standard  Oil 
Co.  V.  United  States,  221  IT.  S.,  1,  the  whole  history 
of  the  Standard  Oil  Company  was  put  into  the 
recoifl,  and  acts  of  monopolization  were  proved 
which  concededly  took  place  long  l)efore  the  Sher- 
man Law  was  enacted.  The  admission  of  this  tes- 
timony was  approved  because  it  tended  to  establish 
an  intent  on  the  part  of  the  defeudajits  to  monopo- 


47 


lize.  See  also  Patterson  v.  United  States,  222  Fed., 
599;  certiorari  denied,  238  U.  S.,  635,  where  ab- 
sorption of  competitors  not  covered  by  the  indict- 
ment, and  against  which  the  statnte  of  limitations 
had  run,  were  admitted  because  they  threw  light 
on  the  monopolistic  purpose  of  the  defendants. 

When  the  defendants  are  charged  with  an  un- 
lawful purpose,  it  is  obviously  proper  for  them  to 
introduce  e^ddence  tending  to  show  a  different  and 
proper  purpose  {Wigmore,  Sec.  1732;  Grimes  v. 
The  States,  68  Ind.,  193;  United  States  V.  Craig, 
4  Wash.  C.  C,  729).  And  as  tending  to  establish 
such  a  proper  purpose,  all  the  surrounding  facts 
and  circumstances  may  as  well  be  shown  by  the 
defendants  as  by  the  plaintiffs.  Thus  where  the 
plaintiff  alleged  a  conspiracy  of  an  association  of 
grain  elevators  and  common  carriers,  the  purpose 
of  which  w^asi  to  injure  the  plaintiff  by  procuring 
a  discrimination  in  freight  rates  against  him,  it 
was  held  reversible  error  to  exclude  evidence  tend- 
ing to  esitablish  that  it  was  expected  that  the  plain- 
tiff would  join  the  association,  since  such  evidence 
tended  to  disprove  the  jnirpose  of  injuring  him 
{Kellogg  v.  Sowerhij,  190  N.  Y.,  370).  And  in  Pat- 
terson V.  United  States,  where  the  defendant  was 
indicted  for  a  conspiracy  to  monopolize  trade,  it 
was  held  error  to  exclude  e\idence  that  a  certain 
competitor  had  practiced  aggressive  competitive 
tactics  againsit  the  defendant,  since  such  evidence 
tended  to  show  that  the  purpose  of  the  defendant 
was  not  monopoly,  but  self-defense  (222  Fed.,  599, 
()48).  In  this  case  it  was  claimed  by  the  prosecu- 
tion that  one  of  the  means  used  in  attaining  mo- 
nopoly was  a  series  of  harassing  patent  infringe- 
ment suits.  It  was  held  error  to  exclude  evidence 
that  tlie  patents  were  in  fact  infringed,  since  it 
tended  lil^ewise  to  show  tliat  tlie  purpose  was  not 
monopoly,  but  self-defense  {ihid,  647), 


48 


The  case  at  bar  falls  clearly  within  the  principle 
of  these  cases.  The  gist  of  the  whole  case  was 
stated  by  the  Court  in  its  opinion  modifying  the 
injunction : 

"The  membersi  of  the  Amalgamated  Cloth- 
ing Workers  may  resor-t  to  legal  means  for 
the  puri30se  of  improving  their  condition  but 
tliey  cannot  combine  or  act  for  the  purpose 
of  injuring  someone  else." 

To  show  that  the  acts  complained  of  were  done  for 
the  purposie  of  improving  the  condition  of  the  Amal- 
gamated, it  is  proper  to  show  that  those  acts,  in 
so  far  as  they  were  not  of  themselves  illegal,  were 
merely  the  application  of  a  general  policy  jjursued 
by  the  union,  without  reference  to  the  plaintiff. 
It  is  proper  to  show  that  this  policy  has  in  the 
past  resulted  in  higher  wages,  shorter  hours,  fewer 
labor  disputes  and  more  regular  employment,  for 
the  fact  that  these  results  have  followed  in  the  past 
is  the  best  possible  evidence  that  they  are  the  real 
objective  of  the  defendants  to-day.  And  it  is  proper 
to  show  the  economic  interdependence  of  the 
clothing  markets,  since  such  a  showing  rebuts  the 
assumption  that  the  defendants  were  mere  inter- 
meddlers  in  Rochester,  and  that  hence  their  pur- 
])ose  cannot  have  been  a  proper  one. 

2.  Such  evidence  is  furthermore  admissible  l)e- 
cause  it  shows  that  tlie  damage  inflicted  u]>on  the 
plaintiffs  by  tlie  defendants  was  justified  in  laAv. 

An  analysis  of  trade  union  cases,  at  first  siglit 
slightly  different  from  the  analysis  followed  in  the 
New  York  cases,  but  in  substance  the  same,  may 
l)e  found  in  the  writings  of  Mr.  Justice  Holmes 
(see  especially  Privilege;,  Malice  and  Intent,  by 
Oliver  Wendell  Holmes,  Jr.,  8  Harv.  Law  Rev..  1 
[1894]).  The  principle  is  that  "the  intentional 
infliction  of  temporal  damage  or  the  doing  of  an 


49 


act  manifestly  likely  to  inflict  sncb  (laniage  anrl 
inflicting;-  it,  m  actionable  if  done  without  just 
cause"  {ihid,  \).  3).  And  more  specifically  that 
*'when  a  plaintiff  proves  that  several  personsi  have 
combined  and  conspired  to  injure  his  business,  and 
have  done  acts  produciug  that  effect,  he  shoAvs  tem- 
poral damage  and  a  cause  of  action,  unless  the 
facts  disclose,  or  the  defendants  prove,  some  ground 
of  excuse  or  jus-tificajtion"  (Holmes,  J.^  dissenting, 
in  Yrr/elahn  V.  Gunfncr,  107  Mass.,  92,  105). 

The  justification  in  cases  involving  trade  union 
activity  is  the  broad  justification  of  free  competi- 
tion, of  the  economic  strnggle  for  existence.  Of 
course,  the  justification  is  not  absolute.  -'We  all 
agree  that  it  cannot  be  done  by  force  or  thi-eats  of 
force"  {ihkl,  p.  100).  And  the  justification  exists 
only  "when  the  damage  is  done  not  for  its  own 
sake,  but  as  an  instrumentality  in  reaching  the 
end  of  victory  in  the  battle  of  trade." 

As  to  the  scope  of  the  justification,  "the  true 
gi'ounds  of  decision  are  considerations  of  policy  and 
of  social  advantage,  and  it  is  vain  to  suppose  that 
solutions  can  be  attained  merely  by  logic  and  the 
general  propositions  of  law  which  nobody  disputes" 
{ibid,  p.  100). 

"The  danger  is  that  such  considerations 
should  have  their  weight  in  an  articulate 
form  as  unconscious  prejudice  or  half  con- 
scious inclination.  To  measure  them  justly 
needs  not  only  the  liighest  powers  of  a  judge 
and  a  training  which  the  practice  of  the  law 
does  not  insure,  but  alsO'  a  freedom  from 
])repossessions  which  is  very  hard  to  attain. 
It  seems  to  me  desirable  that  ^the  work 
should  be  done  with  express  recognition  of 
its  natui-e.  The  time  lias  gone  by  wlien  law 
is  only  an  unconscious  embodiment  of  the 
common  will.  It  has  become  a  conscious 
reaction    upon    its,elf    of    organized    society 


50 

knowingly  seeking  to  determine  its  own  des- 
tinies" {Privilege,  Malice  and  Intent,  8  Harv. 
Law  Eev.,  p.  9). 

Since  the  courts  must,  in  the  absence  of  legis- 
lation, determine  the  extent  and  scope  of  justifica- 
tion in  industrial  controversies,  it  is  imperative 
that  they  should  have  before  them,  as  material  for 
the  decision,  all  the  relevant  industrial  facts — the 
effect  of  unionization  upon  the  industry,  its  im- 
portance as  a  means  of  attaining  and  preserving 
fair  industrial  standards,  and  the  extent  to  which 
it  is  able,  while  seeking  primarily  its  own  economic 
advantage,  to  safeguard  the  interests  of  the  in- 
dustry and  of  the  public. 

The  type  of  economic  fact  legally  relevant  to  such 
a  judicial  inquiry  is  clearly  set  forth  in  a  recent 
decision  of  the  Supreme  Court  of  the  United  States 
(Board  of  Tirade  of  Chicago  v.  United  States,  24G 
U.  S.,  231 ) .  The  question  was  whether  a  rule  estab- 
lished by  the  grain  market,  forbidding  any  member 
from  purchasing  grain  outside  of  market  hours  at 
any  other  j)rlce  than  the  closing  bid  of  the  previous 
session,  was  in  violation  of  the  Sherman  Law.  The 
lower  Court  held  the  rule  was  in  restraint  of  trade, 
merely  from  an  examination  of  the  rule  itself,  and 
excluded  all  evidence  as  to  the  economic  effect  or 
object  of  the  rule.  The  Supreme  Court  reversed 
the  decision. 

"The  true  test  of  legality-,"  said  Mr..  Justice 
Brandeis,  speaking  for  a  unanimotis  Court,  "is 
whether  the  restraint  imposed  is  such  as  merely 
regulates  and  perhaps  thereby  promotes  competi- 
tion or  whether  it  is  such  as  may  suppress  or  even 
destroy  competition.  To  determine  that  question 
the  court  must  ordinarily  consider  the  facts  pecu- 
liar to  the  business  to  which  the  restraint  is  ap- 
plied; its  condition  before  and  after  the  restraint 
was  imposed;  the  nature  of  the  restraint  and  its 


51 


effect,  actual  or  probable.  The  history  of  the 
restraint,  the  evil  believed  to  exist,  the  reason  for 
adopting  the  particular  remedy,  the  purpose  or 
end  sought  to  be  attained,  are  all  relevant  facts. 
This  is  not  because  a  good  intention  will  save  an 
otherwise  objectionable  regulation  or  the  reverse; 
but  because  knowledge  of  intent  may  help  the  court 
to  interpret  facts  and  to  predict  consequences.  The 
District  Court  eiTed,  therefore,  in  striking  from 
the  answer  allegations  concerning  the  history  and 
purpose  of  the  Call  rule  and  in  later  excluding  evi- 
dence on  that  subject"  (pp.  238,  239). 

The  analogj'  between  this  case  and  tlie  case  at 
bar  is  a  very  close  one.  In  each  case  there  is  a 
charge  that  the  normal  course  of  competitive  in- 
dustry has  been  restrained — in  the  Federal  case  by 
an  association  of  grain  dealers,  in  the  case  at  bar 
by  an  association  of  workers.  In  each  case  it  is 
necessary  to  establish  a  justification.  And  in  each 
case  that  justification  must  rest  not  on  a  mere 
deduction  from  theoretical  economic  conceptions, 
but  on  "the  facts  peculiar  to  the  business  to  which 
the  restraint  is  applied," 

E. 
Methods  of  Proof. 

As  to  tlie  metlicd  of  establishing  the  relevanl 
facts,  under  the  rules  of  evidence,  little  need  here 
be  said,  for  the  legal  problem  will  differ  to  some 
extent  with  each  item  of  testimony.  The  outlines 
of  the  subject  can,  however,  be  touched  u])on. 

1.  The  res  gestae.  Since  the  piineipal  i.^'Siie 
in  the  case  is  as  to  the  nature,  organization,  activi- 
ties and  purposes  of  the  Amalgamated,  in  so  far 
as  the^'  relate  to  the  strike  at  Michaels,  Stern  cV: 
'Company's  shop,  it  follows  that  any  transactions, 
negotiations,  correspondence,  aj^reements,  etc.,  are 


52 


a  part  of,  or  cliaracterize,  the  activities  of  the  Anial- 
i>aiiiated,  or  the  surrounding  eircimistances  in 
which  they  acted,  are  admissible  as  part  of  tlie  res 
f/esfac — ^^or,  if  the  term  is  preferred,  as  evidentiary 
facts  relevant  to  the  issue.  They  are  admissible, 
l^ecause  it  is  a  fact  logically  relevant  to  the  issue 
that  such  agreements,  transactions,  corresipoud- 
ence,  etc.,  took  place  {Badger  v.  Badger,  88  ]^.  Y., 
546,  556;  Wigmore,  p.  1729;  cf.  Lawlor  v.  Loeive, 
235  IT.  S.,  522,  536,  where  statements  of  customer-s 
as  to  the  reason  why  they  stopped  dealing  with 
the  plaintiff  were  held  admissible).  In  SinifJi 
V.  yafionnl  Benefit  Society,  123  X.  Y.,  85,  the  in- 
surance company  claimed  that  the  insured,  being 
insolvent,  had  carried  through  a  deliberate  and 
fraudulent  plan  of  placing  life  insulance  with  a 
number  of  companies  and  then  committing  suicide, 
so  that  his  creditors  and  family  might  l)e  pr-ovided 
for.  It  was  held  proper  to  show  ap])lications  to 
thirty-six  insurance  companies,  letters  and  tele- 
grams to  relatives  and  friends,  and  pre]>a rations 
for  suicide,  as  part  of  the  res  gestae  of  the  fraud. 

2.  Expert  Testimony.  As  to  th.e  general  eco- 
nomic facts  at  issue,  the  case  is  emphatically  one 
for  expert  testimony.  Economic  problems  are  in- 
volved which  require  expert  familiarity  with  the 
use  of  statistics,  the  oi\ganization  nnd  functioning 
of  industry,  and  the  problems  of  labor  management. 
]\[orec;ver,  the  case  not  only  involves  general  ques- 
tions which  might  arise  in  any  business,  but  in- 
volves the  industrial  facts  j^eculiar  to  the  men's 
clothing  industry  of  the  United  States. 

Two  kinds  of  expert  testimony  should  be  differ- 
entiated:  (a)  Where  certain  facts  are  in  evidence, 
the  rx])ert  may  be  asked  what  conclusions  his  ex- 
l)ert  knowledge  and  experience  would  lead  him  to 
draw  f]-om  the  facts,  (b)  Where  the  ex])ert  hns 
himself  acquired  knowledge  of  certain  facts  rele- 


53 


vaut  to  the  case,  which  his  experience  and  tiaiuiiiij, 
render  him  pecnliavly  qualified  to  reproduce  cor- 
rectly, he  may  testify  directly  to  tluii-f'  facts,  as 
well  as  to  the  conclusions  which  he  draws  fi-om 
them  {DoughGrty  v.  MilUken,  163  X.  Y,.  527). 

In  one  aspect  the  firet  type  of  expert  evidence  is 
especially  important.  It  is  settled  law  that  where 
a  mass  of  documents  and  records  are  involved,  it 
is  jH'oper  to  allow"  an  expert  statistician  to  draw 
statistical  and  expert  conclusions  from  this  evi- 
dence, and  place  them  before  the  Court  in  the  form 
of  summariesi,  charts,  and  other  graphic  representa- 
tions. The  rule  is  one  of  convenience,  to  save  the 
time  of  the  Court,  and  to  give  to  the  Court  assist- 
ance in  comprehending  complicated  and  voluminous 
data.    It  is  obviously  a  rule  of  common  sense. 

The  leading  American  case  on  the  subject  is  Bos- 
ton (G  ^yorcesier  R.  Corp.  v.  Dana,  07  Mass.,  83. 
This  was  a  suit  agtiinst  a  ticket  agent  for  em- 
bezzling ticket  recei])ts,  and  a  witness  was  allowed 
to  present  as  exhibits  schedules  showing  the  num- 
ber of  tickets  sold  at  specified  dates,  and  the  num- 
ber of  tickets  taken  u])  from  ])assengers  by  con- 
<luctors.  Tlie  opinion  of  the  Court  sustaining  this 
testimony  clearly  sets  foj-th  both  the  rules  and  its 
qualifications : 

"But  it  api)eais  to  us  that  (piestions  of 
this  sort  Jiiust  necessarily  be  left  vei'y  niucli 
to  the  discretion  of  the  judgf  who  presides 
at  the  trial.  It  would  doubtless  be  inex- 
])edient  in  most  cases  to  permit  ex  parte 
statements  of  facts  or  figures  to  be  i)re]»aied 
and  submitted  tt)  the  juiy.  It  should  only 
be  done  where  books  and  documents  are  mnl- 
tifarious  and  voluminous  and  of  a  charactei- 
to  lender  it  d'fticult  for  the  jury  to  conijtre- 
liend  material  facts  without  the  aid  of  suel) 
statements,  and  even  in  such  cases  they 
should    not   lie  admitted.   uu1e»-   vei-ified    1)V 


54 

persons  wlio  liave  prepared  them  from  the 
originals  in  proof,  and  who  testify  to  their 
accuracy,  and  after  ample  time  "has  been 
given  to  the  adverse  party  to  examine  them 
and  test  their  correctness"   (p.  104). 

In  Reinke  v.  Sanitary  District,  260  111.,  380 ;  130 
X  E.,  236,  the  issue  being  the  amount  of  land 
which  the  diversion  of  water  into  the  Illinois  River 
would  flood  at  different  periods  of  the  year,  statis- 
tics of  rainfall,  official  figiires  of  overflow,  and  the 
G^overnment  contour  map  were  in  evidence.  Testi- 
mony of  an  expert  WTitness,  including  charts  and 
diagrams  made  by  him  from  the  data  in  evidence, 
were  rejected  at  the  trial.  The  Appellate  Court 
held  that  the  testimony  should  have  been  received. 

"These  charts  or  exhibits  illustrated  in  a 
graphic  way  the  results  of  evidence  already 
admitted.  The  evidence  showing  these  re- 
sults in  detail  consisted  of  a  mass  of  flgiires 
fllling  many  pages  of  the  record,  whicli 
might  well  have  been  practically  meaning- 
less to  the  jnry  in  tlie  absence  of  any  con- 
crete conclusions  drawn  from  them  by  expert 
witnesses.     *     *     * 

The  ordinary  man  serving  on  a  jury  would 
not  understand  very  clearly  tlie  elevations 
of  the  land  frr;m  a  contour  map,  but  would 
easily  comprehend  the  testimony  of  an  ex- 
pert witness  as  to  what  land  would  be  cov- 
ered by  water  at  a  given  time,  based  upon 
a  contour  map,  i*ainfalls,  gauge  readings, 
and  otner  data  of  like  nature  which  it  i« 
a  part  of  the  business  of  a  skilled  engineer 
to  undei^stand.  The  admission  of  testimony 
of  this  character  rests  largely  in  the  sound 
discretion  of  the  trial  court,  in  view  of  all 
the  facts  and  circumstances  of  the  case. 
While  we  wonld  not  i-everse  this  case  solely 
Itecanse  of  tlie  rulings  on  this  testimony,  we 
think  it  was  admissible"  (pp..  388,  389).. 


55 


This  rule  is  accepted  in  New  York.  Thus,  Yon 
Sachs  V.  Kretz,  72  N.  Y.,  548,  was  a  suit  under  a 
contract  of  employment  by  which  the  plaintiff  was 
entitled  to  4  per  cent  of  the  firm  profits.  The 
Court  said  (p.  552)  : 

"The  offer  to  show,  by  the  witness  Mover, 
the  results  derived  from  his  examination  of 
the  books  of  Schepeler  &  Co.  was  rejected 
by  the  referee,  on  the  gi'ound  that  the  books 
were  in  e\idenee  and  'spoke  for  themselves.' 
This  was  not  error.  It  does  not  appear  that 
the  referee  could  not,  without  tlie  aid  of 
expert  testimony,  ascertain  from  the  books 
all  the  facts  offered  to  be  shown  l)y  the  wit- 
ness. It  would  not  have  been  error  for  the 
r-eferee  to  have  allowed  a  witness,  with  the 
books  before  him,  to  jiive  a  summaiy  of  their 
contents;  but  this  was  a  question  of  con- 
venience simply,  and  a  matter  within  his 
discretion." 

Yan  Nafne  v.  Yan  'Name,  38  App.  Div.,  451,  was 
a  suit  for  an  accountino:,  and  the  referee  received 
an  expert  accountant's  summary  from  the  books. 
Justice  Willard  Bartlett  said,  speakiu":  for  a  unani- 
mous Court: 

"The  cash  books  from  which  it  [the  sclied- 
ule]  was  ipade  u])  had  all  been  offered  in 
evidence  and  weve  before  tlie  court,  and  it 
is  perfectly  well  settled  at  this  late  day  that 
resor-t.  may  be  liad  to  schedules  containing-  ab- 
stracts of  voluminous  books  or  documents 
which  have  been  put  in  evidence,  where  thof«e 
schedules  are  verified  by  tlie  witnesses  who 
made  them,  and  tlieir  assistance  will  ren- 
der the  original  documentary  proofs  more 
readily  comprehensible  by  judge,  jury  or 
referee"  (p.  450). 

Although  the  general  practice  a])i)ears  to  be  to 
])ut  the  data  from  wliich  the  charts  and  schedules 
are  prepared  directly  in  evidence,  yet  this  also  is 


56 


clearly  a  matter  for  the  discretiou  of  tlie  Court. 
In  Boston  <£•  Worcester  R.  R.  v.  Dana,  supra,  it  was 
held  siifftcient  that  they  were  available  and  accessi- 
ble, and  that  opposing  counsel  was  giyeu  opiDortu- 
uity  to  verify  the  schedules.  And  in  Burton  v. 
DriggSy  20  Wall.,  125,  the  books  in  question  were 
out  of  the  state,  and  it  was  held  proper  to  permit  a 
witness  who  had  examined  them  to  testify  as  to  the 
contents.    The  Court  said  (p.  136)  : 

"When  it  is  necessary  to  prove  the  results 
of  voluminous  fact&  or  of  the  examination 
of  many  books  and  papers,  and  the  examina- 
tion cannot  be  conveniently  made  in  court, 
the  results  may  be  proved  by  the  person  who 
made  the  examination"  (p.  136). 

A  case  which  illustrates  how  essential  the  prin- 
ciple may  be,  and  how  useful  as  a  time-saver,  is 
People  ex  rel.  v.  Woodbury,  67  Misc.,  481. 

Certiorari  was  brought  to  review  tax  assess- 
ments, on  the  ground  that  in  their  general  practice 
the  assessors  had  adopted  a  discriminatiug  set  of 
assessments.  A  real  estate  expert  who  had  made 
an  investigation  of  assessments  throughout  the 
county  was  allowed  to  testify  as  to  the  discrimina- 
tion, giving  in  evidence  the  detailed  results  of  liis 
study.  The  Appellate  Term  in  reviewing  the  case 
said : 

"The  fact  of  inequality  is  difticult  of  proof. 
There  are  shown  to  be  110,579  different 
pieces  of  property  in  Queens  County.  Evi- 
dence of  the  actual  value  and  the  assessed 
valuation  of  each  of  these  pieces  would  be 
relevant  to  the  issue  of  inequality,  but  it  is 
entirely-  impracticable  to  receive  such  a 
volume  of  evidence.  It  was  probably  for 
this  reason  that  Judge  Earl  admitted  opin- 
ion evidence  on  the  subject." 


57 


The  practical  considerations  which  appealed  to 
the  Court  in  that  case  are  equally  pertinent  in 
the  case  at  bar. 

The  second  kind  of  expert  testimony,  in  whicli 
facts  or  conclusions  obsened  or  known  by  the  ex- 
pert are  directly  testified  to,  isi  likely  to  play  a 
prominent  part  in  the  case. 

Of  course,  where  the  expert  testifies  to  a  sini])]e 
occurrence  or  fact  which  he  has  obserTed,  such  as 
the  conduct  of  a  man  at  a  certain  time,  or  tlie 
wage  at  which  he  employed  a  given  worker,  no 
question  of  expert  testimony  is  involved.  He  is 
merely  telling  what  he  has  seen  and  done.  The 
principle  comes  into  play  where  the  witness  is 
asked  to  state  a  conclusion  reached  by  liim,  with 
the  aid  of  his  expert  knowledge,  from  a  large  nuiss 
of  facts  which  he  has  observed  or  ex])erienced.  In 
such  a  case  it  is  the  law  of  ;New  York  that  the 
Avitness,  after  stating  in  general  his  opportunities 
for  observation,  may  state  directly  his  conclusion 
upon  the  question,  without  first  giving  in  detail 
the  subordinate  facts  upon  which  his  conclusion  isi 
based  (People  v.  Faher,  199  N.  Y.,  256). 

The  typical  case  of  this  character  is  one  in  which 
an  expert  alienist,  after  jiersonal  observation,  tes- 
tifies to  a  man's  sanity,  or  a  physician  to  the  state 
of  his  health.  Of  course  in  such  a  case  it  is  essen- 
tial that  the  expert's  data  as  to  the  man  whose 
health  or  sanity  is  in  issue  should  be  derived  from 
personal  observation,  and  not  from  hearsay  (Wif/- 
more^  Sec.  065).  But  his  conclusion  genei-ally  in- 
volves not  only  facts  as  to  the  j)articular  jierson, 
Imt  general  scientific  facts  and  principles  derived 
from  a  multitude  of  observations  of  other  similar 
cases.  As  to  these  it  is  olivious  that  the  exi)ei-t 
may  rely  upon  his  general  ex])erience;  indeed.  u]>on 
any  data  which  an  expert  in  tliat  line  custoiiiai-ily 
relies  u])on   (Wif/iiKire,  See.  (Uio  [3]). 


58 


It  frequently  happens,  however,  that  these  gen- 
eral facts  are  themselves  directly  in  issue  in  a  case, 
instead  of  constituting  merely  the  major  premise 
upon  which  an  expert  opinion  is  based.  An  issue 
may  arise,  for  instance,  whether  a  given  method 
of  doing  business  is  customary  in  a  trade.  Upon 
strict  principle,  no  one  could  testify  on  this  issue 
who  had  not  ascertained  from  personal  observation 
that  all  or  virtually  all  the  shops  in  the  trade  used 
the  method  in  question.  But  it  is  recognized  that 
one  who  is  experienced  in  the  trade  and  is  familiar 
with  the  customs  of  the  trade  may  testify  without 
complete  first  hand  observation.  Thus  two  experi- 
enced workmen,  though  they  had  been  employed 
in  only  four  or  five  of  the  fifty  shops  of  the  kind 
in  Kew  York  City,  were  allowed  to  testify  to  a 
general  custom  among  those  shops  of  furnishing 
workmen  with  tongs  and  anvil  for  sharpening  tools 
rather  than  with  gas  pliers  and  slabs  of  steel  [Miele 
V.  Rosenhlatt,  164  App.  Div.,  G04). 

Testimony  of  experts  as  to  general  industrial 
facts  is  familiar  in  many  different  kinds  of  litiga- 
tion. An  expert  witness  in  a  patent  case  may  tes- 
tify as  to  the  "state  of  the  art"  at  a  given  time 
{Winmis  v.  A^  Y.  d  Erie  B.  R.  Co.,  21  How.,  88, 
100).  A  farming  expert  may  testify  as  to  the 
average  yield  of  a  given  crop  (38  Ore.,  291;  61 
Pac,  837).  In  each  of  these  cases  the  testimony 
is  as  to  a  fact,  and  much  of  the  information  upon 
which  it  is  based  is  necessarily  hearsay.  The  ex- 
pert in  the  patent  case,  for  exami)le,  had  not  him- 
self observed  all  the  existing  mechanical  devices 
which  made  up  the  state  of  the  art;  lie  had  doubt- 
less read  of  them  in  technical  journals,  and  lieard 
his  colleagues  discuss  tliem;  but  liis  expert  train- 
ing enabled  him  to  judge  what  statements  he  could 
rely  upon. 


59 


The  most  familiar  type  of  expert  testimony  of 
this  character  is  testimony  as  tO'  market  value. 
Anyone  familiar  with  an  industry  or  with  market 
conditions  affecting"  a  commodity  may  testify  what 
was  the  market  value  of  that  commodity  at  a  given 
time,  even  tliough  liis  knowledge  A\'as  based  n])on 
hearsay. 

The  leading  Xew  York  case  is  Lush  v.  Drusr,  4 
Wend.,  313,  where  it  became  relevant  to  prove  the 
market  value  of  wheat  at  Albany  in  1822,  1824  and 
1825.  ''A  witness,*'  the  statement  of  facts  recites, 
*'pi'oved  the  value  of  wheat  in  Albany  in  the  years 
1822,  '23,  '24  and  '25,  derived  by  him  from  tlie 
books  of  large  dealers  in  wheat  at  that  place,  he 
knowing  nothing  of  the  price  of  wheat  from  his 
own  knowledge"  (p.  314).  The  Court  held  the  tes- 
timony admissible,  observing  that  "The  proof  was 
by  a  witness  who  had  inquired  of  merchants  deal- 
ing in  the  article,  and  examined  their  books.  This, 
uncontradicted,  was  sufficient"  (p.  317). 

The  decision  was  cited  and  approved  by  the 
f^u})reme  Court  of  the  United  States  in  CUquofs 
iliampafine,  3  Wall.,  114,  where  a  witness  was  per- 
mitted to  testify  as  to  the  market  price  of  cham- 
pagnes in  different  sections  of  France,  basing  his 
<*onclusiongi  on  prices-curi'ent  furnished  him  by 
Prench  dealersi  and  on  the  statements  of  such 
■dealers.  In  Chaffee  ct-  Co.  v.  United  States,  18 
Wall.,  516,  542,  referring  to  the  Cliquot  case,  the 
Court  said : 

'^Market  value  is  a  matter  of  opinion, 
which  may  require  for  its  formation  the  con- 
sideration of  a  great  variety  of  facts.  To 
arrive  at  a  just  conclusion,  prices  current, 
vSales.  sliipments,  lettei-s  from  dealers  and 
manufactureis.  jiiay  prtqterly  i-eceive  consid- 
eration." 

And  in  the  recent  case  of  Xew  Arcade  Co.  v, 
€>wens,  258  Fed.,  905,  a  ])r()dnce  dealer  was  allowi^t.I 


60 


to  testify  as  to  the  market  value  of  celery,  his 
knowledge  being  derived  from  "going  down  the 
line"  at  the  market  and  asking  the  dealers. 

The  cases  have  been  followed  without  qualifica- 
tion in  the  later  New  York  decisions.  Of  course  it 
is  not  proper  to  introduce  a  newspa^ier  report  of 
market  quotations,  without  some  evidence  of 
experts  tending  to  show  that  it  is  reliable 
(WheJan  v.  L^nch,  60  N.  Y.,  469).  But  it  is 
proper  for  an  expert  in  the  trade  to  testify  as  to 
the  market  value  of  barley  on  a  certain  day  {Ham- 
Jin  V.  Sears^  82  N.  Y.,  327),  or  for  the  sales  agent 
of  a  Philadelphia  lumber  dealer  to  testify  as  to  the 
wholesale  price  of  lumber  in  New  York,  although 
his  knowledge  was  derived  from  hearsay  (Kilpaf- 
rich  V.  Whitmer  d  Son,  118  App.  Div.,  98),  or  for 
a  broker  to  testify  as  to  the  customary  commission 
of  brokers  {Van  Doren  v.  Jelliffe,  1  Misc.,  354. 
Accord,  Sisson  v.  C.  d  T.  R.  Co.,  14  Mich.,  489 ; 
Stnith  d-  Melton  v.  N.  C.  R.  R.  Co.,  68  N.  C,  107, 
116). 

An  expert  in  the  clothing  industiy  may,  there- 
fore, testify  to  such  general  trade  facts  as  the  level 
of  prices,  or  of  wages,  the  customary  hours  of  work, 
etc.,  etc.,  so  long  as  the  court  is  convinced  that  the 
source  of  his  information  is  accurate,  and  that  he 
lias  the  necessary  expert  qualifications  for  the  task 
of  summarizing  and  reproducing  the  information. 

He  may  testify,  moreover,  upon  questions  which 
are  more  nearly  matters  of  opinion  than  of  fact. 
Just  as  a  marine  underwriter  may  testify  that  cer- 
tain kinds  of  cargo  increase  the  risk  of  the  ven- 
ture (Lcifeh  V.  Insurance  Co.,  66  N.  Y.,  107),  or 
a  medical  expert  whether  a  certain  wound  caused 
the  death  of  the  victim  {Egfjler  v.  People,  56  X. 
Y.,  642).  so  it  would  seem  clearly  to  lie  competent 
for  an  expert  familiar  with  the  men's  clothing  in- 
dustry to  testify  as  to  the  interrelation  of  markets 


61 


and  the  interdepeiideuce  of  industrial  standards  in 
the  different  clothing  centers,  or  as  to  the  effect 
of  unionization  upon  an  industry,  or  upon  any 
similar  question  relating  to  trade. 

The  expert  witness  may  state  not  only  the  gen- 
eral conclusions  reached  by  him,  but  the  data  upon 
whicli  the  conclusionsi  are  based  {Wigmore,  Sec. 
5G2).  Thus  in  CUquofs  Champagne,  3  Wall.,  114, 
the  expert  put  in  evidence  the  price-currents  which 
foreign  dealers  had  furnished  him,  and  whicli  were 
the  basis  of  his  expert  judgment  as  to  the  market 
value  of  IIk'  chMJiipngne. 


62 
PART  THIRD. 

LaTirf Illness  of  Particular  Means. 

Assuming-  that  in  pursuit  of  their  objective  of 
inducing  the  plaintiff  to  accept  the  system  of  col- 
lective bargaining  and  arbitration  generally  preva- 
lent in  the  industry,  the  defendantsi  could  properly 
use  any  means  not  in  themselvesi  unlawful,  it  re- 
mains to  consider  what  particular  means  are  ap- 
proved by  the  law  of  New  York  and  what  means 
are  disapproved. 

The  inquiry  is  rendered  difficult  by  the  circum- 
stance that  courts,  especially  in  other  jurisdictions, 
sometimes  use  words  (like  ''threat,"  "coercion," 
'intimidation/'  etc.)  which  have  an  ambiguous 
significance.  They  may  denote  illegal  conduct,  and 
they  may  denote  legal  conduct.  Hence  it  will  be 
necessaiw  to  cany  the  analysis  behind  such  general 
j)hrases,  and  to  inquire  specifically  into  the  facts 
behind  these  words  which  determine  whether  or 
not  tlie  conduct  is  legal  or  illegal.  Fortunately 
the  decisions  of  the  New  York  courts  contain  much 
clarifying  language  as  to  the  meaning  of  these  am- 
Itigiious  phrases. 

Strikes. 

It  is,  of  coui-sp,  no  longer  necessary  to  argue  that 
in  New  York  the  workmen  in  a  particular  industry 
can  concertedly  cease  to  woik  for  an  employer. 
As  a  means  to  a  lawful  end,  the  strike  is  nowhere 
held  unlawful.  Cases  in  which  strikes  have  lieen 
enjoined  have  been  those  in  which  the  object  of  the 
strike  was  deemed  illegal.  In  National  Protective 
Ass'n  V.  Cumming,  170  N.  Y.,  315,  botli  majoi'ity 
and  minority  Judges  agreed  upon  the  following 
statement  of  the  law: 


63 


''It  is  not  the  duty  of  one  man  to  work  for 
another  unless  he  has  agreed  to,  and  if  he 
has  so  agreed  but  for  no  fixed  period,  either 
may  end  the  contract  whenever  he  chooses. 
The  one  may  work,  or  refuse  to  work,  at  will, 
and  the  other  may  hire  or  discharge  at  will. 
The  terms  of  employment  are  subject  to  mu- 
tual agreement,  Avithout  let  or  hindrance 
from  anyone.  If  the  terms  do  not  suit,  or 
the  employer  does;  not  please,  the  right  to 
quit  m  absolute,  and  no  one  may  demand 
a  reason  therefor.  Whatever  one  man  may 
do  alone,  he  may  dO'  in  combination  witli 
others,  provided  they  have  no  unlawful  ob- 
ject in  view\  Mere  numbers  do  not  ordi- 
narily affect  the  quality  of  the  act.  Work- 
ingmen  have  the  right  to  organize  for  the 
l>ui'])ose  of  securing  higher  wages,  shorter 
hours  of  labor,  or  improving  their  relations 
with  their  employers.  They  have  the  right 
to  strike;  that  is,  to  cease  working  in  a 
body  by  pre-arrangement  until  a  grievance 
is  redressed,  provided  the  object  is  not  to 
gratify  malice  or  inflict  injury  upon  others, 
but  to  secure  better  terms,  of  employment 
for  themselves.  A  peaceable  and  orderly 
strike,  not  to  harm  others,  but  to  improve 
their  own  condition,  is  not  in  violation  of 
law"  (pp.  320,  321). 

Persuasion  or  Enticement. 

In  Xew  York  it  is  not  unlawful  to  persuade  or 
entice  other  workmen  to  strike. 

Under  the  old  English  ccmimon  law  of  the  four- 
teenth century,  before  the  Statute  of  Laborers,  it 
was  not  actionable  to  entice  away  another  man's 
servant.  An  action  on  the  case  at  common  law  lay 
only  where  there  was  a  forcible  trespass,  and  a 
taking  of  the  servant  vi  ct  arm  is. 

(Year  Book  Mich.,  11  H.  4  [a],  fol.  23 A, 
pi.  46.  The  fullest  available  report  of 
this  case  is  in  Mr.  Justice  Coleridge's 


64 

opinion  in  Lumley  v.  Gye,  2  El.  &  BL, 
216,  254.) 

The  Statute  of  Laborers  (23  Edw.,  Ill)  estab- 
lished compulsory  labor,  and  under  it  an  action 
lay  against  anyone  who  caused  a  servant  under 
contract  of  service  to  depart  before  his  term  ex- 
pired. The  statute  applied  only  to  laborers  in 
husbandry.  As  Justice  Cottesmore  said  {Year 
Book  Mich.,  10  H.  6  [d],  fol.  8B,  pi.  30)  : 

''It  was  not  made  but  for  laborers  in  hus- 
bandly; as  in  case  of  a  knight,  an  esquire, 
or  gentleman,  you  cannot  compel  them  to  be 
in  your  service  by  the  statute,  for  that  the 
statute  is  not  to  be  understood  but  of 
laborers,  who  are  vagrant,  and  have  nothing 
whereby  to  live;  these  shall  be  compelled 
to  be  in  service,  but  a  chaplain  hath  whereof 
he  may  live  in  common  understanding  as  a 
gentleman''   (p.  265). 

From  this  statute  and  its  successors  grew  the 
so-called  common-law  action  for  enticing  seiwauts. 
It  applied  whether  or  not  the  seiTant  was  under 
contract  for  a  specified  time  (Hart  &  Aldridge, 
Cowp.  54). 

Early  ^N'ew  York  cases  assume  the  existence  of 
this  right  of  action.  Thus  in  Stuart  v.  Simpson, 
1  Wend.,  376,  a  theatre  was  sued  for  employing 
the  plaintiff's  apprentices  as  supernumeraries. 
There  was  a  non-suit,  for  lack  of  evidence  that  the 
defendant  knew  they  were  apprentices.  Woodicard 
V.  Washburn,  3  Den.,  369,  was  an  action  for  false 
imprisonment  of  the  plaintiff's  servant.  Recover^' 
was  allowed  and  the  Court  in  its  opinion  approved 
the  English  doctrine  that  for  enticing  a  servant  a 
cause  of  action  lay.  Haight  v.  Badgeley,  15  Barb., 
499,  was  a  suit  for  trespassing  on  the  plaintiff's 
land  and  enticing  away  her  servant  girl.    RecoveiT 


65 


was  allowed  on  the  theory  tliat  ^'The  gravamen  of 
the  complaint  is  trespass  domiim  f regit,  and  the 
persuasion  of  the  servant  is  matter  of  aggravation." 
Biit  the  Court  was  of  opinion  that  the  English  ac- 
tion for  enticing  seiTantsi  even  without  a  trespass 
M'ould  lie.  Caughcy  v.  ^mitli,  47  N.  Y.,  244,  was 
a  suit  by  the  father  of  a  fifteen-year-old  boy  against 
one  whO'  enticed  the  son  to  enlist  as  his  substitute 
in  the  army.  Recovery  was  allowed  on  proof  of 
scienter,  and  the  Court'si  language  indicatesi  its  opin- 
ion that  a  similar  action  wonld  lie  for  enticing  any 
'^servant." 

But  these  dicta  were  soon  recognized  to  be  ont 
of  harmony  with  the  modern  democratic  spirit. 
Johnston  Harvester  Co.  v.  Peter  Meinhnrdt,  60 
How.  Pr.,  168  (1880),  is  a  historic  case,  notable 
both  for  the  importance  of  the  point  decided  and 
for  the  ability  of  Justice  Macond^er's  decision. 
There  was  a  strike  at  the  plaintiff's  shop,  and  the 
Iron  Moulders  Union  adopted  tactics  designed  to 
persuade  workmen  not  to  work  for  the  plaintiff 
until  he  conceded  the  union  denumds.  The  i)lain- 
tifP  asked  for  an  injunction  and  his  counsel,  relying 
upon  the  English  decisions  and  Xew  York  dicta, 
claimed  that  the  Court  could  enjoin  any  enticement 
of  liis  servants  by  the  union  officials.  Justice  Ma- 
comber,  after  examining  fully  the  early  New  York 
<*aseg,  and  the  English  precedents  culminating  in 
Ijumley  v.  Gye,  2  El.  &  Bl.,  216,  commented  as 
follows: 

''As  is  well  known,  the  origin  of  this  kind 
of  actions  was  at  a  time  of  the  snbstantial 
enslavement   of   domestic    servants,   and    at 
:  the    outset    it    proceeded    u])on    the    theory 

that  snch  servant  had  not  freedom  of  action 
which  is  conceded  to  that  class  today;  yet 
in  one  way  or  another,  the  doctrine  has  been 
extended,  as  has  been  sliown  above,  not  only 
in  England  but  in  ]>arts  of  the  United  States, 


G6 

to  cases  which  in  its  inception  it  did  not 
cover.  I  am  disinclined  to  extend,  by  any 
judgment  of  mine,  the  doctrine  of  recoveiy 
for  enticing  away  servants  where,  both  in 
fact  and  theory  the  person  enticed  is  a  free 
agent  to  come  and  go  as  he  will,  responsible 
only,  like  other  persons,  for  the  violation  of 
his  contract  or  his  duty*'   (pi>.  175-176). 

The  Court  held  that  only  acts  of  violence,  in- 
timidation or  coercion  would  be  enjoined. 

The  case  wasi  afflirmed  in  the  Appellate  Division 
(21  Hun,  489,  memorandum  opinion)  on  the 
ground  that  the  acts  "did  not  constitute  invasion 
of  any  clear  right  of  property  vested  in  the  plain- 
tiff, and  that  no  irreparable  injury  was  threat- 
ened." 

Rogers  v.  Evurts,  17  K  Y.  Supp.,  201;  aff'd  sub 
nom  Reynolds  V.  Everett,  67  Hun,  291;  144  N.  Y., 
189,  was  a  similar  case,  involving  peaceful  per- 
suasion of  employees  to  strike.  The  Trial  Ooui't 
discussed  fully  the  common  law  cases,  and  reached 
the  conclusion  that  the  doctrine  of  the  "entice- 
ment" cases  had  not  been  accepted  in  New  York, 
and  was  not  satisfactory.  Its  decision  denying  an 
injunction  was  sustained  in  the  Appellate  Division, 
in  an  exhaustive  opinion.  The  Court  of  Appeals 
affirmed  the  decision,  without  passing  on  the 
merits,  on  the  ground  that  it  was  within  the  Trial 
Court's  discretion  to  deny  the  injunction,  since 
there  was  no  immediate  iiTeparable  injury  threat- 
ened. 

These  cases  establish  as  the  law  of  Xew  York 
that,  in  the  absence  of  contracts,  it  is  not  action- 
able to  induce  an  employee  by  peaceful  and  honest 
persuasion  to  leave  his  master's  employ. 

Hence  it  is  clear  that  the  dictum  of  Mr.  Justice 
Pitney  in  Hitchman  Coal  <£•  Coke  Co.  v.  Mitchell, 
245  U.  S.,  229,  252,  that  the  "right  of  action  for 


67 

persuading-  an  employee  to  leave  his  employer  is 
universally  recognized  *  *  *  and  it  refits  upon 
fundamental  principles  of  general  application,  not 
upon  the  English  statute  of  laborers,"  is  not  ap- 
plicable to  the  law  of  New  York.  In  New  York 
the  action  is  recognized  as  a  relic  of  feudalism,  of 
an  age  in  whicli,  as  Cottesmere,  J.,  pointed  out, 
there  was  one  law  for  "laborers"  and  anotlier  law 
for  "gentlemen." 

The  Hitchmmi  case  has  not  changed  the  law  of 
Xew  York  upon  this  point,  even  in  the  Federal 
rourts.  In  Triangle  Film  Corp.  v.  Artcraft  Pic- 
tiires  Corp.,  250  Fed.,  981,  the  Circuit  Court  of 
Appeals,  Second  Circuit,  so  held.  W.  S.  Hart, 
the  moving  picture  star,  was  under  contract  to 
remain  with  the  plaintiff  so  long  as  one  luce  should 
be  his  supervising  proxlncer.  Ince  was  not  under 
<-ontract  to  remain  with  the  plaintiff.  The  defend- 
ant, a  rival  tilm  producer,  induced  Ince  to  sever 
his  connection  with  the  plaintiff,  thus  releasing 
Hart  from  his  contract,  and  then  employed  lioth 
Ince  and  Hart.  The  plaintiff  claimed  that  altliough 
no  contract  was  violated,  yet  a  case  was  made  out 
ainder  the  doctrine  of  enticement  of  servants  set 
forth  in  the  Hitchman  case.  The  Court  sustained 
the  order  of  the  Court  below  denying  an  iujunctiou^ 
staying: 

^'Yet  it  is  clear  that  the  real  question  turns 
I  upon  what  is  'just  cause'  (Piivilege,  Malice 
and  Intent,  Oliver  Wendell  Holmes,  Jr.,  <^ 
Harv.  Law  R.,  1  )  and  that  in  etfect  it  makes 
slight  difference  whether  on©  asks  in  respect 
of  what  'cause  of  action'  the  plaintiff  suf- 
fei'ed  his  damage,  or  whether  the  defendant 
had  'just  cause'  for  inflicting  the  damage, 
though  it  d!)eK'  make  a  good  deal  of  difference 
in  the  development  of  the  law.  Nobody  lias 
-ever  thought,  so  far  as  we  can  find,  that  in 
the   absence  of  some  monoj)olistic  pui*])Ose 


G8 

everyone  haw  not  tlie  right  to  offer  better 
terras  to  another's  employee,  so  long  as  the 
latter  is  free  to  leave.  The  result  of  the 
contrary  would  he  intolerable,  both  to  such 
employers  as  could  use  the  employee  more 
effectively,  and  to  such  employees  as  might 
receive  added  pay.  It  would  put  an  end  to 
any  kind  of  competition. 

That  such  a  doctrine  sliould  be  supposed 
to  follow  from  Traux  v.  Raich,  supra,  or 
Hitchman  Ooal  Co.  v.  Mitchell,  supra,  some- 
what surprises  us.  In  the  first  case  the  de- 
fendant had  threatened  to  use  illegal  means 
to  induce  the  employer  to  discharge  the  plain- 
tiff. In  the  second,  a  labor  union  had  deter- 
mined to  compel  a  mine  to  operate  as  a 
closed  shop,  and  that,  too,  by  fraud.  It  was 
iield  that,  since  the  union  was  not  seeking 
to  redress  wrongs  of  which  any  of  the  plain- 
tiff's employees  complained,  but  inter-vened 
only  for  the  purpose  of  preventing  any  open 
shops  which  might  compete  with  closed  shops 
elsewhere,  they  had  no  'just  cause'  for  the 
ensuing  damage.     -     *     *" 

In  siome  of  the  Sonthern  Statesi,  it  is  true,  the 
doctrine  seems  to  ])e  accepted  {Lcc  Daniel  v. 
Sivearengen,  6  y.  C,  297;  Barren  v.  Colh'nfi,  49 
Ga.,  581;  HasMns  v.  Roi/ster,  170  X.  C,  GOl). 
These  were  cases  involving  enticement  of  domestic 
servants,  farm  laborersi,  and  "croppers."  In  one 
of  them  (  DnnielY.  ^ircarenfien)  tlie  Court  observed 
that  the  doctrine  was  of  especial  importance  in  the 
state  since  tlie  institution  of  s;lavery  had  been  abol- 
ished. These  cases  belong  to  the  days  in  Avhich  the 
unregenerate  South  was  trying  hj  indirect  devices 
to  re-establish  slavery  in  the  face  of  the  Thirteenth 
Amendment  (see  Bailey  v,  Alabama, 21^  U.  S.,  210  ). 
Owe  v>'ould  hardly  expect  to  hear  them  cited  iu 
Xew  Yorkv 


09 

In  Xew  York,  therefore,  the  statement  is  true 
that  ''ai'gunients,  reasoning  and  entreaty  are  law- 
ful weapons"  {People  v.  Kostka,  i  X,  Y.  Crini., 
429,  435). 

Inducing   Breach   of   Contract. 

There  is  no  suggestion  in  this  case  that  the  em- 
ployees  of  Michaels,  Stern  &  Company  were  under 
contract  for  any  period  of  time.  The  relations 
appear  to  have  been  terminable  at  will.  But  it 
is  alleged  that  certain  contractors  doing  work  for 
the  plaintiff  were  induced,  by  threats  of  a  strike, 
to  cease  working  for  the  plaintilf,  in  breach  of 
their  contracts.  And  it  is  alleged  that  the  de- 
fendants have  sought  to  induce  the  plaintiff's  em- 
ployees, who  are  members  of  the  United  Garment 
Workers,  to  break  the  contract  between  the  United 
and  Michaels,  Stern  &  Company. 

Of  course,  no  question  of  law  arises  under  this 
heading  unless  it  is  proved  that  there  was  a  valid 
mibsisting  contract,  and  that  the  acts  or  omissions 
Induced  by  the  defendants  were  in  fact  in  breach 
of  Sfuch  contract.  It  is  obviously  unprofitable  to 
<liscuss  this  aspect  of  the  case  before  the  facts  ure 
fully  develoiied.  Wliat  folk>Avs  assumes  that  the 
plaintiffs  are  successful  in  meeting  and  sustaining" 
the  burden  of  ]>roof  upon  this  issue  of  fact. 

The  law  of  New  York  u]x>n  the  right  of  action 
for  inducing  a  breach  of  contract  has  been  authori- 
tatively laid  down  in  two  recent  decisions  of  the 
Court  of  A])i)eals;  hence  it  is  unnecessary  to 
do  more  than  refer  briefly  to  the  earlier  cases. 
They  begin  with  Ashley  v.  Dix&n^  48  N.  Y.,  4.30, 
where  A  contracted  to  sell  land  to  B,  and  B  con- 
tracted to  resell  it  to  C.  Thereupon  O  went  over 
.B's>  head  to  A,  and  induced  A  to  sell  it  to  C  direct. 
13   then  >sued   C   in   tort   for  iiulncin<2   A    to   l.u-eak 


70 


liis  contract.  The  Court  denied  recovery,  on  the 
ground  that  C's  obligation  to  refrain  from  inter- 
fering with  the  contract  was  "one  of  those  imper- 
fect moral  obligations  which  the  law,  as  adminis- 
tered in  OTir  courts,  does  not  undertake  to  enforce." 

This  case  was  taken  by  the  inferior  courts  of 
^ew  York  to  mean  that  the  right  of  action  for 
inducing  breach  of  contract  did  not  exist  in  Xew 
York  unless  illegal  means  was  used  {Daly  v.  Corn- 
wcJU  34  App.  Div.,  27;  De  Jonfj  v.  Behrman,  131 
N.  Y.  Supp.,  1083;  MaJilcr  Co.  v.  Mahler,  160  App. 
Div.,  548;  ^^ee  also  dicta  in  Johnston  Harvester  Co. 
V.  Meinhardt,  60  How.  Pr.,  168;  Rogers  v.  Erarts, 
17  X.  Y.  Supp.,  264,  and  Jesse  I^asky  Co.  v.  Fox^ 
157  X.  Y.  Supp.,  106).  These  eases  expressly  reject 
the  English  doctrine  of  Jumley  y.  Gye,  2  El.  &: 
Bl.,  216. 

In  Posner  Co.  v.  Jackson,  223  X.  Y.,  325,  how- 
eyer,  the  Court  materially  modified  the  doctrine  of 
these  prior  decisions. 

Sarah  Posner,  a  dress  designer  of  uni(pie  abil- 
ity, had  a  fiye-year  contract  to  work  exclusiyely 
for  the  plaintiff  corporation.  The  <lefeudant  offered 
her  a  higher  wage  and  induced  hei-  to  break  her 
contract  with  the  jilaintiff.  The  plaintiff  brought 
suit,  alleging  that  the  services  of  the  dress  designer 
were  of  unique  and  great  importance  to  the  plain- 
tiff", that  the  defendant  knew  of  this  imiwrtance^ 
and  that  he  induced  her  to  break  the  contract  with 
the  wrongful,  corru])t  and  malicious  purpose  of 
injuring  the  plaintiff. 

In  the  trial  court  and  Appellate  Division  the  de- 
fendant won,  on  tlie  authority  of  Ashley  v.  Diron, 
but  the  Court  of  Ap])eals  i-eversed  the  decision, 
laying  down  the  following  as  the  applicable  priis* 
ciples  of  law : 


71 


"The  plaintiff's  i-iglit  to  recover  thereon, 
if  at  all,  depends 

(1)  Upon  its  right  to  the  employee's  ser- 
vices pnrsuant  to  express  contract  for  a 
definite  period  of  time. 

(2)  The  defendants'  knoAvledge  of  the 
contract  and  of  the  same  being  valuable, 
important  and  essential  to  the  plaintiff  in 
maintaining  its  business  as  the  defendants' 
competitor, 

(3)  The  defendants'  wilful  and  nuilicious 
intent  and  purpose  to  injure  the  plaintiff  by 
deiii-iving  it  of  such  employee's  services  as 
}>rovided  in  the  contract." 

The  Court  distinguished  Ashley  v.  Dixon  and 
De  Jonf/  V.  Behrnian  on  the  ground  tliat  in  neither 
case  was  there  a  malicious  intent  to  injure  the 
])laintiff. 

In  Law!)  v.  Chencif,  227  N.  Y.,  418,  the  doctrine 
of  the  Posnrr  case  was  amplified.  One  Bullard 
agreed  to  work  for  the  ]daintif¥  for  a  year,  receiv- 
ing in  return  stijmlated  wages  and  the  right  to 
occu])y  a  liouse.  Tlie  <1efendant,  with  full  notice 
of  the  contract,  "maliciously  enticed,  induced  and 
])rocured"  Bullard  to  leave  the  plaintiff's  employ 
and  enter  that  of  the  defendant.  Damages  were 
alleged.  There  was  a  demui'rer,  overrided  at  Spe- 
cial Term  and  in  the  A])pellate  Division. 

The  Court  of  A])|)eals  affirmed  the  decision, 
acce]>ting  tlie  general  rule  that  "if  one  maliciously 
interferes  with  a  contract  between  two  parties,  and 
induces  one  of  them  to  break  that  contract,  to  the 
injury  of  the  other,  the  party  injured  can  maintain 
an  action  against  the  wrongdoer." 

"Tlie  word  'maliciously',"  the  Court  con- 
tinues, "is  detined  in  Bouvier's  Law  Dic- 
tionary (Rawle,  3d  Ed.)  as  meaning  'with 
deliberate  intent  to  injure.'     In  actions  of 


72 

tliis  character  the  word  should  be  given  a 
liberal  meaning.  The  act  is  malicious  when 
the  thing  done  is  with  the  knowledge  of  the. 
plaintiff's  rights  and  with  the  intent  to  in- 
terfere therewith.  In  a  legal  sense  it  means 
a  wrongful  act  done  intentionally  without 
just  cause  or  excuse  (Mogul  Steamship  Co. 
V.  McGregor,  23  Q.  B.  D.  598).  It  does  not 
mean  actual  malice  or  ill  will,  but  consists 
in  the  intentional  doing  of  a  wrongful  act 
without  legal  justification"  (p.  422). 

Both  the  Posner  case  and  the  Cheney  case  were 
decided  on  demurrer,  hence  they  throw  no  light 
upon  what  facts  would,  if  proven,  constitute  a  jus- 
tification. Xor  do  the  previous  cases  throw  any 
light  on  the  subject,  since  they  reject  the  doctrine 
in  toto.  Hence  it  is  necessary  to  look  to  the  de- 
cisions in  other  jurisdictions  to  determine  when  an 
intentional  interference  with  a  contract  is  justified. 

At  the  beginning  it  is  possible  to  set  on  one 
side  a  large  group  of  cases  in  which  the  breach 
of  contract  was  induced  by  illegal  means,  such  as 
violence,  fraud,  or  other  conduct  in  itself  tortious. 
Thus  in  Angle  v.  Chicago  etc.  Ry.,  151  U.  >>.,  1, 
the  defendants  corruptly  bribed  trustees,  in  breach 
of  trust,  to  transfer  the  controlling  interest  in  a 
railway  corporation  to  themselves,  and  through  the 
control  thus  fraudulently  acquired,  procured  the 
I'aihvay  to  break  its  contract  with  the  plaintiff. 

In  Bitterman  v.  Louisville  d  Nashville  R.  Co., 
207  U.  S.,  205,  ticket  scalpers  induced  purchasers 
of  non-transferable  reduced  rate  tickets  to  transfer 
them,  so  that  they  might  be  fraudulently  used  b\- 
persons  not  entitled  to  use  them.  The  trading 
stamp  cases  stand  upon  the  same  principle  (Sperry 
d  Hutchinson  v.  Brady ^  134  Fed.,  691;  Same  v. 
Mechanics  Clothing  Co.,  135  Fed.,  833;  Same  v. 
Temple,  137  Fed.,  992 ;  Same  v.  Weher  d  Co.,  161 
Fed.,  219;  Same  v.  Asch,  145  Fed.,  659). 


73 


In  Truaw  v.  Raich,  239  U.  S.,  33,  the  defendants, 
under  color  of  an  unconstitutional  statute,  were 
threatening  forcible  meang<  to  coerce  an  employer 
into  dismissino-  certain  employees.  See  also  Amer- 
ican Malting  Co.  v.  Kcitcl,  209  Fed.,  351  (C.  C.  A., 
2nd  Clr.)  ;  Motley,  Green  c6  Co.  v.  Detroit  etc.  Co., 
161  Fed.,  389;  Gore  v.  Condon.,  87  Md.,  368;  Ben- 
ton V.  Pratt,  2  Wend.,  385,  and  Rice  v.  Manley,  66 
X.  Y.,  82.  In  these  cases  forcible  or  fraudulent 
means  were  used;  and  of  course  no  economic  justi- 
fication could  be  shown  to  excuse  such  conduct. 

Another  group  of  cases  involves,  not  illegal 
means,  but  an  ultimate  illegal  purpose,  such  as 
restraint  of  trade  or  monopoly  {Doremus  v.  Hen- 
nessy,  176  111.,  608;  Temperton  v.  Russell  [1893], 
1  Q.  B.,  715;  Quinn  v.  LeatJianv,  1901  A.  C,  195; 
KnickerhocJvcr  Co.  v.  Gardiner  Co.,  107  Md.,  556; 
Schonicald  v.  Rogain,  32  Old.,  223)  or  a  secondary 
boycott  {Thomas  v.  Cincinnati  R.  Co.,  62  Fed., 
803).  In  these  cases  the  conduct  was  considered 
illegal  quite  irrespective  of  the  breach  of  contract. 
Hitchman  Coal  Co.  v.  Mitchell,  245  U.  S.,  229, 
properly  falls  under  his  head,  since  the  Court  con- 
sidered (contrary  to  the  New  York  nile)  that 
enticement  of  employees',  for  the  purpose  of  union- 
izing the  mine,  was  illegal,  quite  aside  from  the 
breaches  of  contract.  Here  also  it  is  obvious  that 
no  justification  could  be  found  for  the  interference. 

In  another  group  of  jurisdictions  the  doctrine 
of  Lumley  v.  Gye  is  flatly  rejected  {Bouslier 
V.  McCauley,  91  Ky.,  135;  Sirann  v.  Johnson,  151 
N.  C.  93;  Boyson  v.  Thorn,  98  Cal.,  578;  Sleeper 
V.  Baker,  22  K  D.,  386). 

Turning,  then,  to  the  cases  in  which  the  question 
of  justification  is  squarely  raised,  we  find  first  a 
unanimous  agreement  that  disinterested  jiersuasion 
by  a  person  who  is  not  a  mere  intermeddler  is  not 
actionable,  even  though  a  breach  of  contract  is 
directly    and    intentionally    produced.      Boweti   V. 


74 

EaU,  G  Q.  B.  D.,  333,  the  first  English  case  to 
accept  broadly  the  doctriue  that  iuteutioual  inter- 
ference with  a  contract  is  actionable,  recognized 
this  exception. 

"Merely  to  persuade  a  person  to  break  his. 
contract,"  said  the  Court,  "may  not  be 
wrongful  in  law  or  fact^  as  in  the  second 
case  put  by  Coleridge,  J.  (p.  847).  But  if 
the  persuasion  be  used  for  the  indirect  pur- 
pose of  injur-ing  the  plaintiff,  or  of  benefiting 
the  defendant,  it  is  a  malicious  act,  which 
is  in  law  and  fact  a  wrong  act,  and  therefore 
a  wrongful  act,  and  therefore  an  actionable 
act  if  injury  ensues.'' 

Accord : 

^Yalker  \.  Cronin,  107  Mass.,  555,  55G. 
Pollock,  Torts,  Sec.  339. 

Thus,  for  a  parent  to  persuade  a  son  or  daughter 
to  break  a  contract  of  marriage,  is  not  actionable 
{Leonard  v.  Whetstone,  34  Ind.,  ,  383 ;  Roman 

Y.  Hall  (Xeb.),  165  X.  W.,  881:  Cooleij,  Torts, 
2nd  Ed.,  Sec.  277). 

On  the  other  hand,  it  is  generally  recognized  in 
Xew  York,  as  well  as  elsewhere,  that  there  is  no 
justification  where  the  defendant  merely  wishes  to 
appropriate  to  himself  a  contractual  advantage  to 
which  the  plaintiff  isi  in  law  and  morals  entitled 
(Posner  v.  Jackson,  223  N.  Y.,  325;  Lamb  v. 
Cheney,  221  jST.  Y.,  418).  A  competitor  who  per- 
suades a  singer,  or  designer,  or  actress,  or  baseball 
player,  under  contract  to  work  for  the  plaintiff, 
to  break  his  contract  and  woi-k  for  the  defendant, 
is  doing  what  in  business  ethics  is  closely  analogous 
to  theft.  He  is  appropriating  to  himself  what  he 
knows  the  plaintiff  is  entitled  to. 

That  the  public  policy  in  favor  of  free  com])eti- 
tion  affords  some  justification  for  inducing  brea(•he^* 


75 


of  contracts  is,  however,  reeoguized  by  the  courts. 
Where,  for  instance,  a  public  utility  company  \yas 
established  in  a  community,  and  had  made  con- 
tracts 'v\T.th  its  consumers  extending  into  the  future, 
it  was  held  that  a  competitor  could  properly  come 
into  the  field,  and  by  adyertising  and  solicitation 
induce  the  customers  to  give  him  their  patronage, 
although  he  knew  that  breaches  of  contract  would 
probably  eufeue.  It  was  only  when  the  company 
offered  to  hqld  the  prospective  customers  harmless 
from  breach  of  contract  suits  that  it  was  held 
tliat  the  justification  of  fair  competition  had  l)een 
exceeded  {Citkens  Liglii  etc.  Co.  v.  Montgomery 
Co.,  Ill  Fed.,  553).  And  in  Sperri/  cC-  Hutchinson 
V.  Ponuiier,  199  Fed.,  :509 ;  1'08  Fed..  SOi,  tlie  Oourt 
declined  to  enjoin  the  persuasion  of  customers  to 
abandon  their  contrji^ts  with  the  plaintiff,  but  en- 
joined only  active  and  malicious  and  persistent 
solicitation-  (See  also  Sweeney  v.  Smith,  167  Fed.. 
.■>85,  and  KjiickcrhocJcer  Co.  v.  Gardiner  Co.,  107 
Md.,  550. 

Another  generally  accepted  jiistifieatitjn  is  where 
tlie  defendant  is  himself  in  good  faitli  asserting  a 
legal  right  which,  incidentally,  causes  another  to 
break  a  contract.  Obviously  if  A  is  under  contract 
to  work  exclusiYely  for  B,  and  if  he  then  contracts 
to  work  for  C,  B  may  i)roperly  in<luce  A  to  break 
this  second  contract.  He  is  directly  and  intention- 
ally inducing  a  breach  of  contr-act,  but  he  is  justi- 
fied because  of  liis  sui)erior  legal  right.  Undoubt- 
edly this  is  so  even  where  C"  himself  acted  in  cons- 
plete  good  faith  (see  Smithies  v.  Xut.  Ass.  of  Op- 
.erative  Plasterers  [1909],  1  K.  B.,  310,  337,  iier 
Buckley,  L.  J.).  It  is  enough,  moreover,  that  the 
defendant  believed  that  he  had  a  legal  right,  so 
long  as  he  asserted  it  in  good  faith.  Thus,  one  who 
in  good  faith  asserts  ownership  in  a  chattel  in  the 
possession  of  a  bailee,  and   iuduces'  the  bailee  by 


76 


such  honest  assei'tion  not  to  deliver  tlie  article  to 
the  tnie  owner,  is  not  liable  even  though  it  should 
later  proA'e  that  his  claim  was  unfounded  [Huadey 
V.  HaycH,  191  Fed.,  943).  ^NTor  is  a  creditor  liable 
who  in  good  faith  notifiesi  a  third  person  not  to 
pay  money  which  he  owes  to  the  plaintiff  {'Norcross 
V.  Otis,  152  Pa.,  481). 

If,  therefore,  it  should  appear  in  the  case  at  bar 
that  there  was  an  underetanding  among  tlie  mem- 
bers of  the  Amalgamated  not  to  work  on  garments 
which  a  contractor  was  making  for  a.  mamifaeturer 
against  whom  a  strike  was  in  progress,  and  that 
this  general  understanding  pre-dated  the  contracts 
alleged  to  have  been  interfered  with,  it  would  fol- 
low that  they  could  lawfully  enforce  and  carry  out 
the  general  understanding,  even  if  it  should  have 
the  effect  of  making  it  impossible  for  the  contrac- 
tor to  carry  out  his  contract. 

In  essence,  this  justification  is  one  of  self-defense. 
Tlie  defendant  is  justified  in  inducing  the  breach 
of  contract  because  the  contract  itself  wa«:  an  in- 
fringement upon  his  rights.  Under  this  justifica- 
tion it  does  not  seem  necessaiw  that  the  contract 
i^rhould  actually  infringe  a  prior  contract  or  a  fnlly 
jirotected  right  of  property.  It  is  enongh  that  it 
was  a  means  of  aggression  against  the  defendant. 

Suppose,  for  instance,  that  a  mannfactnrer  of 
patent  medicines  adoj)ts  a  policy  of  selling  only  to 
jobbers  who  Avill  agree  not  to  sell  to  retailers  below 
a  fixed  price,  as  in  this  State  he  lawfully  may 
{Jolin  D.  Park  d  Sans  v.  National  WJiolesaJe  Drur/- 
ffists  Ass'n,  175  X.  Y.,  1).  Suppose  further  that 
a  jobber,  with  the  sole  puiqioi-'e  of  defeating  the 
manufacturer's!  ])olicy,  makes  a  contract  with  a 
i-etailer  to  reU  him  a  lai'ge  quantity  of  the  patent 
medicines  below  the  set  i)rice.  Suppose  that  the 
mannfactnrer.  upon  learning  of  the  contract,  im- 
mediately shuts  off  the  jobber's   snpply.     Can  it 


■il 


be  that  the  manufacturer  is  liable  to  the  retailer 
for  inducing-  the  breach,  and  that  he  can  be  enjoined 
from  refusing  to  sell  to  the  jobber?  Or  suppose 
til  at  a  beneficial  association  employs  doctors  for 
the  benefit  of  its  members,  and  adopts  a  rnle  that 
members  nuist  ])atronize  those  doctors,  except  in 
emergency,  rather  than  outside  doctors.  Buch  a 
rule  is  lawful  {Peck  v,  Nortlicni  Pacific,  51  Mont., 
295).  A  member  in  violation  of  this  rule  makes 
a  contract  with  an  outside  doctor,  and  as  a  result 
is  threatened  with  expulsion  under  the  miles.  Could 
the  doctor  recover  damages  against  the  association, 
and  by  injunction  compel  the  association  to  retain 
the  man  as  a  member  although  he  persists  in  vio- 
lating the  rules?  Or  that  the  director  of  a  Soldiers- 
Home  directs  his  pensioners  not  to  patronize  a 
saloon,  as  he  lawfully  may  (171  Ind.,  28).  Can 
a  saloonkeeper  make  a  contract  with  a  pensioner, 
and  then  hold  the  director  liable  if  he  compels  the 
pensioner  to  break  it? 

A  clear  authority  for  the  view  herein  contended 
for  is  Iron  Moldrrs  Uuio>i  v.  A  His  Chalmers  Co., 
166  Fed.,  45  (C.  C.  A.,  Tth  Cir. ).  There  was  a 
strike  at  the  Allis  Chalmei-s  iron  foundry,  and  the 
company  sent  out  its  casiing  to  be  done  under  con- 
tract by  foundries  in  othei-  cities.  The  strikers 
induced  the  molders  in  these  other  foundries  to 
Tefuse  to  work  on  the  castings,  tind  the  molders 
thereupon  tlireatened  to  strike  unless  tlieir  em- 
ployers cancelled  their  contracts  with  the  Allis 
Chalmers  Company,  Tlie  District  Court  enjoined 
this  procurement  of  bi-eaches  of  contract,  but  this 
part  of  the  injunction  was  vacated  in  the  Circuit 
Court  of  Ap])eals, 

"In  t]i(;se  instances  where  tlie  foundrymen 
fultiiled  their  contracts,"  said  the  Court, 
"ap])ellee  was  not  damaged ;  in  those  wlicre 
i'ouudrymen   bj-oke  theii-  contracts,  tliere  is 


78 

no  proof  that  appellee  has  not  collected  or 
cannot  collect  adequate  damages.  That 
might  be  taken  as  a  reason  why  appellee 
on  this  branch  of  the  case  is  not  entitle<l 
to  the  aid  of  equity.  But  there  is  a  moi-e 
important  reason.  Appellants  were  aiming 
to  pieveiit,  and  appellee  to  secure,  the  doing 
of  certain  work  in  which  the  skill  of  appel- 
lants' trade  was  necessar\\  Here  was  the 
ground  of  controversy,  and  here  the  test  of 
endurance.  If  appellee  had  the  right  (and 
we  think  the  right  was  perfect)  to  seek  the 
aid  of  fellow  foundrymen  to  the  end  that 
the  necessary^  element  of  labor  should  enter 
into  appellee's  product,  a]>pellant  had  the 
reciprocal  right  of  seeking  the  aid  of  fellow 
molders  to  prevent  that  end."^ 

Under  the  authority  of  this  last  cited  case,  there- 
fore, as  well  as  nnder  the  manifest  common  sense 
of  the  situation,  if  it  should  appear  that  the  con- 
tract between  the  United  Garment  AVorkers  and 
the  plaintiff  was  entered  into  merely  as  an  incident 
in  the  general  conflict  between  the  plaintiff  and 
the  Amalgamated,  it  would  follow  that  the  Amal- 
gamated would  be  justified  in  using  la^'ful  means* 
of  inducing  a  breach  or  abrogation  of  the  contract. 
Any  other  mle  would  lead  to  the  most  extreme 
consequences.  It  would  mean  that  any  person  who 
anticipated  labor  troubles  conld  at  any  time  com- 
jdetely  paralyze  his  opponent  hy  entering  into  con- 
tracts inconsistent  \Aith  their  aims. 

Suppose  a  single  nianufactui'er,  who  anticipates? 
a  digagTeement  \\ith  a  wealthy  and  powerful  unionv 
of  whicli  his  employees  are  all  memTvers.  He  hastily 
makes  large  contracts  with  his  customers  for  de- 
livery in  the  near  future  at  a  favorable  price.  He 
then  notifies  the  union  officials  of  the  existence  cf 
the  rouirncts,  and  warns  them  that  a  strike  will 
have  the  necessary  effect  of  causing  him  to  violate 
those  contracts.     Can  it  be  that  by   this   simple 


79 

device  he  can  paralyze  the  actmty  of  the  union 
leaders?  Or  that  if  they  disregard  the  warning 
and  call  a  strike,  let  ns  say,  for  higher  wages,  they 
can  be  held  for  heavy  damages  to  the  manufac- 
turer's customers? 

Physical  Force  and  Violence. 

No  argument  is  necessary  to  show  that  to 
induce  the  plaintiff's  employees  not  to  work  for 
him  by  physical  violence  is  actionable,  however 
laudable  the  motive.  An  early  English  case 
gave  a  trader  a  right  of  action  against  one  Avho 
scared  away  his  native  customers  by  gunshots. 
And  an  early  New  York  case  allowed  a  landlord 
recovery  against  one  who  drove  his  tenant  away 
by  forcible  means  (Aldridge  v.  Stuyvesant,  1  Hall 
[N.  Y.],  210).  The  same  principle  applies  to  a 
labor  dispute  {Mills  v.  U.  S.  Printing  Co.,  99  App. 
Div.,  COS).  It  is  hardly  necessary  to  add  a  word 
of  caution  that  "force"'  and  "violence"  when  used 
in  this  connection  mean  physical  force  or  violence. 
We  sometimes  speak  of  a  strike  as  a  resort  to  force 
rather  than  to  reason,  or  say  that  a  man  is  "forced" 
by  economic  pressure  to  do  something  against  his 
will;  but  that  is  not  the  sense  in  which  the  word 
is  used  here.  It  means  such  an  act  as  wonld  sus- 
tain an  action  of  assault  and  battery  at  common 
law. 

Threats,   Menaces    and    Intimidation. 

Few  words  are  as  dangerously  charged  with  am- 
I'riguity  as  these.  The  cases  are  full  of  injunctions 
against  "force,  threats  and  intimidation"  (S^im 
Printing  Co.  v.  Delaney,  48  App,  Div.,  623;  Her^og 
V.  Fitzgerald,  74  Ai)p.  Div.,  110;  Kreha  v.  Rosen- 
stcin,  50  App.  Div.,  ()19).  But  it  must  be  insisted 
that   where   so   nsed   the   words   mean   threats   of 


80' 


pliysical  force,  or  of  some  other  tortious  conduct. 
In  National  Protective  Ass'n  v.  Cwmming,  170  N. 
Y.,  315,  tlie  lower  Court  supported  its  judgment 
by  finding  ''threats  of  a  general  strike  of  other 
Avorkmen.''  But  Chief  Judge  Parker,  for  the  Court 
of  Appeals,  pointed  out  that  "A  man  may  threaten 
to  do  that  which  the  law  saysi  he  may  do,  provided 
that,  within  the  rules  laid  down  in  those  cases,  his 
motive  is  to  help  himself.  A  labor  organization  is 
endowed  w^ith  precisely  the  same  legal  right  as 
is  an  individual  to  threaten  to  do  that  which  it  may 
lawfully  do"  (p.  331).  In  Park  d  Sons  Co.  v.  Na- 
tional Draggisfs  Ass'n,  175  ]!^.  Y.,  1,  20,  the  same 
Judge  repeated  "that  a  man  may  threaten  to  do 
that  which  the  law  says  he  nuiy  do,  provided  that 
*     *     *     his  motive  is  to  help  himself." 

Such  being  the  law,  it  is  important  to  scrutinize 
very  carefully  the  charges  of  threats,  menaces  and 
intimidation  w^hich  are  usually  made  in  labor  cases. 
There  are  many  means  by  which  unions  can  inflict 
harm  on  an  employer,  for  a  proper  purpose,  and 
hence  numy  kinds  of  injury  which  it  may  lawfully 
threaten.  Hence  it  is  always  important  t(t  c(ui- 
sider  whetlier  the  tlireat  was  not  (a)  to  drive 
the  employer  out  of  business  unless  he  complies 
with  a  denumd  which  tlie  union  may  properly  make, 
and  (b)  to  drive  him  out  of  business  by  juirely 
lawful  means.  If  neither  the  object  nor  the  threat- 
ened means  were  illegal,  the  threat  itself  does  not 
give  rise  to  a  cause  of  action.  And  it  sliould  always 
be  boi-ne  in  mind  that  where  words  are  ecpially 
susceptible  of  two  interi)retations,  one  lawful,  tin* 
other  unlawful,  the  burden  is  upon  the  ])laintiff  to 
])rove  that  the  unlawful  inter])i-etation  is  the  cor- 
rect one. 


81 


Picketing. 

In  some  jurisdictions  it  is  held  that  picketing  is 
an  unlawful  means  of  conducting'  a  labor  dispute, 
no  matter  how  peaceful  and  orderly  it  may  be. 
The  decisions  proceed  upon  a  supposed  presump- 
tion of  law  that  picketing  will  necessarily  involve 
violence  (Beck  v.  UaUiray  Teamsters  Union,  118 
Mich.,  497;  Barnes  v.  Chicago  Typo.  Union,  232 
111.,  402;  opinion  of  Bramwell,  B.,  cited  in  Wright, 
Criminal  Conspiracy,  p.  39).  But  the  New  York 
cases  do  not  indulge  in  any  such  invidious  presump- 
tion. They  recognize  that  a  workman  is  as  much 
entitled  to  the  presumption  of  innocence  and  lawful 
conduct  as  any  other  citizen. 

The  first  case  upon  the  subject  was  Rogers  v. 
Evarts,  17  X.  Y.  Supp.,  2G4,  in  which  Mr.  Justice 
Smith  laid  down  the  rule  that  peaceful  picketing 
was.  lawful,  and  that  it  was  only  where  the  conduct 
conveyed  threats  and  intimidation  that  it  would  be 
enjoined.  The  language  of  the  learned  Justice  has 
b'^en  often  quoted: 

'^Picketing  may  be  done  in  such  numbers 
as  to  constitute  intimidation.  Jeering  and 
slionting  at  employees  by  strikers  may  con- 
stitute intimidation.  Persuasion  or  entreaty 
may  be  so  persistent  as.  to  constitute  in- 
timidation. Wherever  the  strikers  assume 
toward  the  employees  an  attitude  of  menace, 
then  persuasion  and  entreaty,  with  words 
however  smooth,  may  constitute  intimida- 
tion, which  will  render  those  who  nse  them 
liable  to  the  penalties  both  of  the  civil  and 
criminal  law.  There  has  been  no  evidence 
offered  in  tliis  case  as  to  circnmstances  sur- 
rounding the  acts  of  persuasion  and  en- 
treaty, so  that  the  court  can  liold  that  they 
were  so  used  as  to  constitute  intimidation, 
and  thus  become  unlawful.  It  may  be  im- 
possible to  lay  down   a   general  rule  as  to 


82 

what  surrounding  circumstances  will  char- 
acterize persuasion  and  entreaty  as  intimi- 
dation. Each  case  must  probably  depend 
upon  its  own  surroundings.  But  when  the 
evidence  presents  such  a  case  as  to  convince 
the  court  that  the  employees  are  being  in- 
duced to  leave  the  employer  by  operating 
upon  their  fears  rather  than  upon  their  judg- 
ments or  their  sympathy,  the  couit  will  be 
quick  to  lend  its  strong  arm  to  his  protec- 
tion" (p.  269). 

Of  course,  the  words  "threat,"  "intimidation," 
"fear,"  etc.,  must  be  understood  to  mean  threats 
or  fear  of  physical  violence. 

The  case  was  followed,  after  exhaustive  discus- 
sion, in  an  able  opinion  by  Judge  (then  Justice) 
Andrews,  in  Foster  v.  Retail  Clerks  Protective 
Ass^n^  39  Misc.,  48.  "Mere  picketing,"  he  said, 
"if  it  is  peaceful,  if  there  is  no  threat  or  intimida- 
tion, if  it  is  confined  to  simple  persuasion,  I  do  not 
regard  in  any  sense  as  unlawful,  whatever  may  be 
the  motive  by  the  picketers."  The  injunction 
granted  by  the  Court  enjoined  the  defendants, 
aside  from  actual  trespass  upon  tlie  -plaintiff's 
premisesi,  only 

"from  obstructing  access  to  the  plaintiff's 
store  by  any  physical  means ;  from  so  acting 
as  to  collect  crowds  in  front  of  or  adjacent 
to  said  store,  which  crowds  shall  ob^struct 
travel  upon  the  streets  or  sidewalks  at  or 
in  the  neighborhood  thereof;  and  finally 
from  the  use  of  threats,  violence  or  intimida- 
''  tion  with  the  intent  of  preventing  travelers 

upon  the  highway  or  intending  customers  of 
the  plaintiffs  from  entering  the  store  of  the 
plaintiffs  or  trading  with  them,  or  whereby 
such  result  is  attained"   (p.  59). 

In  Sun  Printing  Ass'n  v.  Delaneif,  48  App.  Div., 
623,    an    injunction    against    merely    "requesting" 


83 


employees  not  to  work  for  the  plaintiff  was  modi- 
fied by  the  Appellate  Division  to  read  ^^in  such 
manner  asi  to  express  or  implj'  a  threat,  intimida- 
tion, coercion  or  force." 

In  Mills  V.  United  States  Printing  Co.,  D9  Ajip. 
Div.,  609,  the  subject  is  discussed  at  length.  Picket- 
ing itself,  the  Court  said,  is  not  illegal.  It  may  be. 
for  instance,  merely  for  purposes  of  ol)serYation, 

"But  ^picketing-,' ''  tlie  Court  continued, 
^^may  also  mean  the  stationing  of  a  man  or 
men  to  coerce  or  to  thi^eaten  or  to  intinddate 
or  to  halt  or  to  turn  aside  against  their  will 
those  who  would  go  to  and  from  the  picketed 
place  to  do  businesis.  or  to  work,  or  to  seek 
work  therein,  or  in  some  other  way  to  ham- 
per, hinder  or  harass  the  free  dispatch  of 
business  by  the  employer.  In  that  case 
picketing  may  well  be  said  to  be  unlawful." 

There  is  a  dictum  in  the  case  which  goes,  perhajis., 
further  than  the  pre^ious  cases  we  have  referred  to. 

"I  nmy  add,"  the  learned  Justice  contin- 
ued, "that  I  am  not  jjrepared  to  say  that  all 
picketing  wdiich  goes  nO'  furthei*  than  'jjer- 
suasion  and  entreaty'  of  those  who  are  about 
to  work  or  to  seek  to  worl?:  or  to  do  business 
in  the  picketed  place  is  absolutely  lawful. 
A  wayfarer  npon  the  public  street  should  be 
free  for  peaceful  travel.  No  man  against 
my  will  lias  the  legal  right  to  occupy  the 
public  street,  to  arrest  my  course  or  to  join 
me  on  my  way,  be  he  ever  so  ]K)lite  or  gentle 
in  his  insistence.  There  may  be  no  intimi- 
dation, and  yet  an  interruption  of  j^eaceful 
travel.  There  may  be  annoyance  witliont 
danger.^' 

As  applied  to  an  ordinary  disinterested  wayfarer 
lupon  the  highway,  the  language  of  the  learned  -his- 
tice  is  doubtless  warranted.  Bnt  a  person  who 
>ieals  with  an  employer  against  whom  a  sti-ilc*^  ia 


84: 


in  progress  is  not  a  disinterested  wayfarer.  He 
has  voluntarily  made  hims'elf  to  a  certain  decree 
a  party  to  the  dispute.  Just  as  a  person  who 
engages  in  political  controversy,  or  puWishes  a 
contentious  literary  production,  throws  himself 
open  to  a  certain  amount  of  privileged  comment 
on  the  part  of  critics,  even  extending  to  disparage- 
ment and  annoying  publicity,  so  it  would  seem 
that  one  who  deals  with  a  party  to  a  labor  con- 
troversy cannot  complain  if  he  is  subjected  to  the 
annoyance,  persistent  solicitation  and  entreaty,  so 
long  as  there  is  neither  actual  nor  threatened  phy- 
sical injury.  Judge  Baker  put  the  rule  succinctly 
in  Iron  Moulders  Union  v.  AH  is  Cliohners  Co.,  ]6(> 
Fed.,  45 : 

'^Under  the  name  of  persuasion,  duress 
may  be  used;  but  it  is  duress,  not  per- 
suasion, that  should  be  restrained  and  pun- 
ished^'   (p.  51). 

Finally,  in  Jones  v.  Maher,  02  Misc.,  388;  aff'd 
without  opinion  141  App.  T)iv.,  010.  the  law  if* 
Btated  in  the  same  way.  The  picketing  involved, 
in  that  case,  violence,  Tostling.  "shouldering.'"  etc., 
though  the  cases  of  serious  violence  were  found  not 
of  sufficient  frequency  to  warrant  holding  the  union 
responsible.  Hut  the  Tourt  found  frequent  and' 
systematic  u^e  of  "epithets  offensive  and  even  in- 
d'ecent,"  and  this  was  lield  to  render  the  picketing 
tinlawfub  damages  being  awarded". 

Coercion. 

Tliis  is  another  dangeiously  amln'guous  word.  So- 
far  as  it  im])lies  physical  coercion — tlie  application^ 
of  bodily  force — there  is  no  doubt  that  it  deseribesn 
illegal  conduct.  But  it  is  generally  used  in  iu 
broader  sense,  to  include  ocnnoiiiic  coercion.. 


85 


Xow  it  is  obvious  that  every  act  of  ecouomic 
coercion  is  not  illegal.  An  employer  is  informed 
by  his  men  that  if  he  does  not  raise  llieir  wages, 
they  will  strike.  He  knows  that  a  strike  will  hurt 
his  business;  hence  he  yields.  Of  course  he  is 
coerced  into  3'ielding,  in  one  sense  of  the  word, 
but  it  is  equally  clear  that  the  coercion  was  lawful. 
In  Illinois,  it  is  true,  it  has  been  lield  that  tO'  call 
a  strike  in  order  to  compel  an  employer  to  sign 
an  agreement  relating  to  conditions  of  employment 
is  illegal  duress,  and  enjoinable  ( O'Brien  v.  People, 
"216  111.,  354).  But  this  case  speaks  the  language 
•of  the  dissenting  opinions  in  the  New  York  cases, 
( See  the  language  as  to  coercion,  dictation,  slavery, 
compulsion,  etc.,  in  the  opinion  of  Vann,  J.,  in 
Jacobs  V.  Cohen,  183  :N'.  Y.,  207,  215.)  It  is  con- 
trary to  the  opinions  and  decisions  of  the  majority.. 
A  strike  to  "coerce"  an  employer  to  dischai'ge  non- 
union men  is  lawful  (Bossert  v.  DJiiii/,  221  N.  Y.^ 
312).  "I  know  it  said  in  another  opinion  in  this 
•case,*'  said  Judge  Parker  in  National  Protective 
Ass'n  v.  Cummings,  170  jS^.  Y.,  315,  324,  "that 
•workmen  cannot  dictate  to  employers  how  they 
shall  caiTy  on  their  business,  nor  whom  they  shall 
or  shall  not  employ,'  but  I  dissent  absolutely  from 
that  proposition,  and  assert  that,  so  long  as  work- 
men must  assume  all  the  risk  of  injuiw  that  may 
=come  to  them  through  the  carelessness  of  co-em- 
ployees, they  have  the  moral  and  legal  riglit  to  say 
that  they  will  not  work  with -certain  men,  and  the 
'employer  must  accept  their  dictation  or  go  without 
•their  seiTices." 

Coercion  by  lawful  economic  pressure  is  not 
Uierefore  illegal.  It  is  unlawful  only  when  carried 
on  in  a  way  that  ])ublic  policy  forbids;  bnt  tliis  is 
4>est  considered  under  the  next  heading. 


86 

Boycotts. 

The  tenn  ''boycott"  has  a  Avide  variety  of  mean- 
ings. In  its  broadest  sense  it  was  used  on  a  historic 
occasion  by  Sir  Charles  Russell : 

"My  lords,  in  this  matter  of  boyeotting, 
may  I  T>e  foi*given  for  using  the  celebrated 
exclamation  of  Dr.  Johnson,  and  say  'Let 
us  clear  our  minds  of  cant.'  Boycotting  has 
existed  from  the  earliest  times  that  human 
society  has  existed.  It  is  only  a  question 
of  degree.  Vp  to  a  certain  point,  boycotting: 
is  not  only  net  criminal,  but  I  say  it  is  jus- 
tifiable and  is  right.  For  what  does  Iwy- 
cotting  mean?  It  means  the  focusing  of  the 
opinion  of  the  community  in  condemnation 
of  the  conduct  of  an  individual  of  that  com- 
munity Avho  offends  the  general  sense  of 
propriety,  or  offends  against  its  general  in- 
terests. Is  tliere  no  boycotting  at  the  bar? 
Is  there  no  boycotting  in  the  other  profes- 
sions? Is  there  no  boycotting  in  the  church? 
Is  there  no  boycotting  in  politics?  Is  there 
no  boycotting  of  tradei^uien  in  election 
times?  What  is  the  meaning  of  sending  a 
man  to  Coventry?  I  say  that  boycotting — 
I  am  not  justifying  intimidation,  I  am  not 
justifying  foi'<-e,  I  am  not  justifying  violence 
in  connection  with  it,  those  are  different 
things — I  am  talking  of  an  act  of  moral 
reprehension  called  boycotting,  and  I  say  it 
always  has  existed  and  always  will"  (Ad- 
dress of  Sir  Charles  Russell  before  Parnell 
Commission,  1889,  Macmillan  Ed.,  p.  214;; 
quoted  Wiffmore  Cas.  Torffi,  A^ol.  II,  p.  .339). 

in  so  far  as  limited  to  mei-e  social  ostracism,  it 
i^s  not  claimefl  that  boycotting  is  illegal.  But  in 
American  cases  it  i*^"  frequentlv  used  to  designate 
,"  concerted  withdrawal  of  patronage,  as  a  mean?- 
of  economic  coercion.  It  is  said  in  Xew  Jersey 
tbgt  all  boycotts,  as  incidents  in  trade  disputeSj, 


87 


are  unlawful  (Martin  v.  McFalJ,  05  X.  J.  E(i.,  91). 
But  in  Xew  York  tliis  is  not  the  law. 

"I  think/'  siaid  Justice  Jenks  in  Mills  v.  United 
States  PrinHng  Co.,  99  App.  Div.,  ()0r),  Oil,  ''that 
the  verb  'to  boycott'  does  not  necessarily  signify 
that  the  doersi  employ  violence,  intimidation  or 
other  unlaw'ful  coercive  means,  but  that  it  may  be 
correctly  used  in  the  sense  of  the  act  of  a  combina- 
tion in  refusing-  to  have  business  dealings  with 
another  until  he  removes  or  ameliorates  conditions 
which  are  deemed  inimical  to  the  welfare  of  the 
members  of  the  combination,  or  some  of  them,  or 
grantsi  concessions  which  are  deemed  to  nmke  for 
that  purpose.  And  as  such  a  combination  may  be 
formed  and  hebl  together  by  argument,  persuasion, 
entreaty  or  by  the  'touch  of  nature,'  and  may 
accomplish  its  purpose  without  violence  or  other 
unlawful  means,  i.  e.,  simply  by  abstention,  I  think 
it  cannot  be  said  that  'to  boycott'  is  to  offend  the 
law." 

Through  what  channels  may  this  concerted  eco- 
nomic pressure  be  laAvfully  exerted?  Of  course, 
it  may  be  exerted  directly  against  the  employee  in 
^juestion,  asi  the  extract  above  quoted  sbows.  In 
some  states  this  is  held  to  be  the  lin>it  of  legality. 
Thus,  for  illustration,  in  Massachusetts  it  is  lawful 
for  employees  to  agree  not  to  work  with  the  plain- 
tiff until  he  meets  their  terms,  but  it  is  actionable 
to  combine  not  to  work  for  a  third  person  unless 
he  discontinues  relations  with  the  plaintiff  (Pickett 
v.  Walsh,  192  Mass.,  572).  This  is  called  the  "sec- 
ondary boycott."  But  in  New  York  a  further  dis- 
tinction is  necessai'j\ 

In  Bosscrt  v.  Dhui/,  221  N.  Y.,  342,  it  was  held 
that  a  carpenters'  union  could  threaten  strikes^  of 
its  members  against  a  builder,  unless  he  discon- 
tinued the  use  of  woodwork  manufactured  in  a 
factory     which     em])loyed     non-union     carpenters. 


88 

This  is  a  secondary  boycott,  but  it  is  a  boycott 
within  the  industry.  In  Gill  Engraving  Co.  v. 
DoerVj  214,  Fed.,  Ill,  Judge  Hough,  in  an  able 
opinion  interpreting  ;New  York  Law,  held  that 
photo-engravers  could  decline  in  concert  to  work 
on  plates  to  be  used  in  any  publication  which  also 
used  engraving  from  non-union  shops.  On  the 
other  hand,  in  Auburn  Braying  Co.  v.  WardeJl, 
227  N.  Y.,  1,  it  was  held  unlawful  for  all  the  unions 
in  the  city  to  combine  to  call  strikes  against  any 
employer  in  any  industiy  who  had  any  dealings 
with  the  plaintiff. 

The  distinction  between  the  cases  we  have  already 
pointed  out  {suprw,  Part  First,  pp.  22,  36).  The 
;New  York  rule  is  that  coercive  economic  pressure, 
for  a  lawful  object,  is  not  actionable  so  long  as 
it  is  confined  to  the  general  field  of  interest.  In 
Bossert  v.  Dhuy,  the  builder  and  the  factory  both 
employed  carpenters;  they  were  engaged  in  differ- 
ent branches  of  the  same  industry,  and  competed 
with  each  other.  It  was  a  boycott  within  the  in- 
dustry. In  Gill  V.  Doerr  Engraving  Co.,  the  boy- 
cott was  confined  to  the  line  of  distribution  of  the 
product  in  question,  and  was  aimed  against  com- 
peting non-union  firms  in  the  same  industr3\  But 
in  Auburn  Draping  Co.  v.  Wardell,  entirely  unre- 
lated industries  were  dragged  into  the  quarrel. 

The  extent  to  which  a  boycott  within  the  in- 
dustry may  be  lawfully  carried  is  illustrated  by 
another  feature  of  the  Bossert  case.  In  that  case 
the  Brotherhood  of  Carpenters  circulated  the  fol- 
lowing letter  in  New  York : 

"To    Owners,    Architects,    Contractors    and 
Builders  of  New  York  City  and  Vicinity: 

Gentlemen : — In  order  to  avoid  any  labor 
trouble  on  jobs  you  are  interested  in,  we 
deem  it  necessary  to  request  you  to  stipulate 


89 

in  all  Yonr  contracts;  a  clause  guaranteeing 
tlie  eni])lojnieut  of  recognized  union  men, 
also  a  clause  requiring  in  tlie  execution  of 
all  contracts  for  carpenter  work  the  employ- 
ment of  union-made  trim,  mantels,  parquet 
flooring,  and  otlier  shop-made  car]ienter 
work.  This  applies  particularly  to  all  classes 
of  kalamein  and  metal  coyered  work. 

We  desire  to  inform  you  that  unless'  this 
material  has  been  constructed  under  strict 
union  conditions  we  shall  refuse  to  handle 
it     *     *     *"  (pp.  351.  352). 

Kere  was:  a  direct  threat  of  a  strike  on  any  job 
on  which  non-union  trim  was  used,  but  it  was  held 
lawful. 

The  limits  beyond  which  a  coerciye  boycott  may 
not  go  are  clearly  indicated  in  Iron  Holders  Union 
V.  Allis  Chalmers  Co.,  166  Fed.,  45,  51.  In  that 
case  the  Court  held  that  it  was  not  unlawful  for 
the  union  to  instigate  strikes  of  iron  molders  in 
other  iron  foundries  which  were  doing  the  plain- 
tiff's work. 

^'On  the  other  liand,''  said  the  Court,  "an 
employer,  haying  locked  out  his  men,  will 
not  be  permitted,  though  it  would  reduce 
their  fighting  strength,  to  coerce  their  land- 
lords and  grocers  into  cutting  off  shelter  and 
food ;  and  employees,  haying  struck,  will 
not  be  permitted,  though  it  might  subdue 
their  late  employer,  to  coerce  dealers  and 
users  into  starying  his  business." 

It  seems  clear,  therefore,  that  under  New  York 
law  it  was  not  actionable  for  the  Amalgamated 
Clothing  Workers  to  threaten  strikes  against  con- 
tractors who  did  work  for  the  plaintiff.  The  facts 
are  precisely  analogous  to  those  in  the  Bosserf 
case,  since  both  the  contractors  and  the  plaintiff 
employed  the  same  class  of  labor,  and  the  products 
of  one  competed  with  the  products  of  the  other. 


90 


It  was  a  boycott  Avithin  the  iiidnstry,  and  lieiice 
lawful. 

Appeals  to  the  Public. 

Assuming-  that  no  economic  coercion  against 
tliird  persons  is  used,  may  the  union  publish  and 
circulate  statements  truthfully  conyeying  to  the 
public  generally  the  facts  of  the  strike  or  other 
labor  controyersy,  and  requesting  the  public  gen- 
erally not  to  deal  with  the  employer  until  the 
grieyance  is  adjusted  ?  In  the  Bucks  Htove  &  Range 
case  it  was  held  unlawful  to  put  the  plaintiff  on 
the  "unfair'  or  "'we  don't  patronize''  list  of  the 
union's  weekly  journal  {Gompcrs  \.  Bucks  Hiore  iC- 
Range  Co.,  33  App.  Cas.  [D.  C],  83;  33  App.  Cas. 
[D.  C],  51G).  The  Supreme  Court  did  not  pass 
upon  the  lawfulness  of  the  "boycott."  It  referred 
to  the  conflict  of  authority  upon  the  subject  in  the 
courts  (p.  437),  but  held  that  if  such  a  boycott 
wasi  illegal  it  was  not  beyond  the  jurisdiction  of 
a  coui-t  of  equity  to  enjoin  it,  although  it  was  con- 
ducted exclusively  by  means  of  written  and  spoken 
words  (p.  437).  In  other  words,  the  injunction 
was  not  utterly  yoid,  so  that  a  yiolation  of  it  could 
not  be  punished  for  contempt.  The  conviction  for 
contempt  was,  however,  set  aside,  because  the  pro- 
ceedings brought  against  Mr.  Gompers  were  held 
to  have  been  civil  proceedings  rather  than  proceed- 
ings for  criminal  contempt,  and  hence  it  was  held 
he  could  not  be  sentenced  to  imprisonment  (221 
U.  S.,  418).  When  the  injunction  came  up  for 
direct  review,  the  C^urt  found  the  controversy  had 
become  moot  (219  U.  '^.,  581). 

On  the  other  hand,  in  a  decision  of  unusual 
ability  and  thoroughness  in  North  Carolina,  the 
circulation  of  an  "unfair"  list  was  held  lawful 
{^tati!  v.  Tan  PcU.  130  N.  C,  633).     A  well-con- 


91 


sidered  decisiou  iu  raliforiiia  is  to  the  same  effect 
{Parkinson  Co.  v.  Bhhf.  Trades  Council,  154  Cal., 
581),  and  the  Montana  Supreme  f'ourt  in  a  vi<»oi- 
ous  opinion  takes  the  same  view  [Lindsay  v.  Mon- 
tana Federation  of  Labor,  37  Mont..  264 ;  see  a  note 
to  this  cas^  in  18  L.  R.  A.,  707). 

The  New  York  decisions  are  clearly  on  the  side 
of  those  cases  which  take  the  more  liberal  view  of 
this  kind  of  trade  union  activity.  Thus  in  Foster 
V.  Retail  Clerks'  Proicrtiiye  Ass'n,  39  Misc.,  48,  the 
union  had  circulated  cards  statino-  that  the  plaiu- 
tiflfs  had  been  declared  "unfair,"  and  that  union  nu^n 
sliould  "keep  awa>."'  Justice  Andrews  refused  to 
enjoin  the  circulation  of  thisi  card,  or  any  publica- 
tion whicli  did  not  im])ly  "'a  threat  to  do  an  unlawful 
injur-;)""  (p.  55).  And  in  Sinsheimer  Y.  United  Gar- 
inenf  Workers,  77  Hun,  215,  the  striking  union  cir- 
cularized the  tradesmen  in  other  cities,  asking  them 
not  to  deal  with  the  employer.  The  lower  Cburt 
enjoined  the  conduct,  but  the  Appellate  Division 
reversed  the  decision,  holding  that  sucli  appeals 
could  only  be  enjoined  when  they  carried  "threats 
or  intimidation.''  And  in  Heitkamper  v.  Hoffman, 
99  Misc.,  543,  the  CcHirt  enjoined  unlawful  picket- 
ing and  threats  and  intimidation,  in  the  course  of 
a  strike  against  a  bake  shop  in  Brooklyn,  but  re- 
fused to  enjoin  publication  of  a  circular  requesting 
])eo]de  not  to  patronize  it. 

"The  union  was  within  its  legal  rights," 
said  the  Court,  "in  ])ublishing  and  distrib- 
uting the  circular,  soliciting  its  sympathizers 
and  friends  to  withdraw  their  iiatronage  or 
to  refrain  fiom  patronizing  the  plaintiff" 
(]).  548). 

The  only  possible  doubt  upon  this  subject  may 
be  thought  to  arise  out  of  a  dictum  in  Bossert  v. 
Dhuy,  221  X.  Y.,  342,  3()5.     The  Court  said : 


92 


"A  strike  or  boycott  may  be  legal  or  illegal 
according  to  the  acts  involved  therein  (citing 
cases),  so  an  action  for  a  direct  and 
primary  purpose  in  the  interest  of  indi- 
vidnals  or  a  combination  of  individuals  taken 
in  good  faith  to  advance  the  interest  of  the 
individuals  or  combination  may  be  lawful, 
while  a  remote  and  secondary  action  Avhich 
carries  with  it  a  degiee  of  maliee  as  a  matter 
of  law  is  illegal.  In  the  case  now  before  us, 
if  the  defendants  had  called  upon  the  public 
generally  to  discontinue  using  the  plaintiffs- 
material  and  had  sought  to  prevent  all  per- 
sons by  communications,  written  or  other- 
wise, from  dealing  with  the  plaintiffs,  their 
acts  would  have  been  illegal.'' 

It  seems  clear,  however,  that  the  Court  had 
reference,  not  to  mere  appeals  and  arguments,  but 
to  coercive  conduct.  It  will  be  recalled  that  the 
Brotherhood  of  Carpenters  in  the  Bossert  case  had 
sent  circulars  to  the  building  trade,  threatening 
strikes  against  all  builders  who  used  non-union 
woodwork.  The  Court  liad  in  mind,  doul)tless, 
coercive  measures  of  this  sort,  operating  in  other 
industries.  The  dictum  is  prophetic  of  Auhurn 
Drayinff  Co.  v.  WardcU,  227  N.  Y.,  1,  in  which 
strikes  were  threatened  against  every  business  man 
in  the  city  who  dealt  with  the  plaintiff.  It  was 
not  designed  to  overrule  the  clear  decisions  in  the 
])rior  cases  we  have  cited,  sustaining  the  right  to 
appeal  to  the  iniblic  by  argument  and  persuasion. 

And  on  ])rinciple  it  seems  that  such  a  right  must 
be  sui-^tained.  The  right  to  tell  the  truth  publicly 
and  ap])eal  by  argument  and  persuasion  to  the 
conscience  and  conviction  of  the  public  is  funda- 
mental. In  a  democratic  country  public  opinion 
rules,  and  honest  ap])eals  to  public  opinion  should 
never  l)e  forbidden.  If  the  public  conceives  that 
trade  unionism  and  collective  bargaining  are  right 


93 


and  in  the  public  interest,  the  public  should  be 
permitted  to  encourage  and  assist  union  labor  by 
refusing  to  deal  with  its  enemies.  If  the  union  is 
in  the  wrong,  the  public  may  be  relied  upon  to 
condemn  it,  and  the  appeals  will  fail.  No  employer 
has  a  right  to  complain  because  tlie  public,  after 
it  has  heard  the  facts  and  the  arguments,  disap- 
proves of  his  method  of  doing  business  and  refuses 
to  deal  with  him.  If  he  feels  that  the  case  is  being 
put  before  the  public  in  a  one-sided  way,  it  is  his 
privilege  to  present  facts  and  arguments  in  reply. 
But  he  has  no  right  to  apply  to  the  courts  to  censor 
the  facts  and  oi)inions  and  arguments  of  his  oppo- 
nents. Industrial  free  speecli  is  as  fundamental 
a  right  as  political  free  speech. 

O'BRIEN  &  POWELL, 

Attorneys  for  Defendants. 

Felix  Frankfurtek, 
Emory  R.  Buckner, 
Ger.\rd  C.  Henderson, 
Robert  Szold, 
Max  Lowenthal, 

Of  Counsel. 


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